Kakakios v Hunter's Hill Council

[2018] NSWLEC 1414

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kakakios v Hunter’s Hill Council [2018] NSWLEC 1414
Hearing dates:	Conciliation conference on 7 & 8 August 2018
Date of orders:	08 August 2018
Decision date:	08 August 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – dual occupancy - conciliation conference - agreement between the parties - orders
Legislation Cited:	Hunters Hill Local Environmental Plan 2012 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Con Kakakios (Applicant) Hunters Hill Council (Respondent)
Representation:	A Whealy, Mills Oakley (Applicant) J A Cole, HWL Ebsworth (Respondent)
File Number(s):	2018/31621
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Con Kakakios against the actual refusal by Hunter’s Hill Council of Development Application no. DA20171075 for the demolition of existing structures, construction of an attached dual occupancy, modification to the drainage easement and strata subdivision at 26 Farnell St, Hunters Hill (Lot A DP 391750).

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The applicant is granted leave to rely on the amended plans and documents as referred to in condition 2 of schedule 1 of the conditions of consent contained at Annexure “A”.

2. The clause 4.6 written request (Annexure “B”) prepared by ABC Planning Pty Ltd, dated July 2018, to vary the Minimum Subdivision Lot Size control under cl 4.1 of Hunters Hill Local Environmental Plan 2012 is upheld.

3. The appeal is upheld.

4. Development Application no. DA 20171075 seeking consent for the demolition of existing structures, construction of an attached dual occupancy, modification to drainage easement and strata subdivision at 26 Farnell St, Hunters Hill NSW 2010 is approved subject to the conditions contained at Annexure “A” and the landscape plan at Annexure “C”.

…………….

Joanne Gray

Commissioner of the Court

Annexure A (178 KB, pdf)  Annexure B (2.35 MB, pdf) Annexure C (1.92 MB, pdf) 

Amendments

13 August 2018 - Due to clerical error, the incorrect version was uploaded on 10/08/2018. The correct version has now been uploaded.

Decision last updated: 13 August 2018