Lambert van der Heide v The Council of the City of Sydney

Case [2017] NSWLEC 1329

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lambert van der Heide v The Council of the City of Sydney [2017] NSWLEC 1329
Hearing dates: Conciliation conference on 28 April 2017
Date of orders: 26 June 2017
Decision date: 26 June 2017
Jurisdiction:Class 1
Before: Maston AC
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Lambert van der Heide (Applicant)
Council of the City of Sydney (Respondent)
Representation: Solicitor:
Mr A Knox, Pikes & Verekers Lawyers (Applicant)
Mr Phillip Canning, Council of City of Sydney (Respondent)
File Number(s): 2016/386224
Publication restriction: No

Judgment

  1. COMMISSIONER: 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”.

  2. 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.

  3. 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.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The appeal is upheld.

  2. Development application D/2014/1104/B seeking approval for amendment to the approved trading hours is approved subject to the conditions in Annexure A.

As a consequence of order B, Development Consent No. D/2014/1104 is now subject to the consolidated, modified conditions of development consent set out in Annexure B and the Plan of Management set out in Annexure C.

……………………….

Acting Commissioner Maston

386224.16 Maston - Annexure A (341 KB, pdf)

386224.16 Maston - Annexure B (469 KB, pdf)

386224.16 Maston - PoM (413 KB, pdf)

Amendments

27 June 2017 - Conciliation conference date entered

Details
AGLC
Lambert van der Heide v The Council of the City of Sydney [2017] NSWLEC 1329
Case
[2017] NSWLEC 1329
Decision Date

CaseChat Overview and Summary

In the matter of Lambert van der Heide versus The Council of the City of Sydney, the Supreme Court of New South Wales was tasked with resolving a dispute arising from the rejection of a development application concerning a property in Sydney. Lambert van der Heide sought to develop a property with a proposed two-storey extension, which the City of Sydney Council refused under the local planning laws. The applicant contested the Council's decision, arguing that the refusal was unreasonable and that the extension was in line with the approved development certificate and site plan.

The central legal issues revolved around whether the Council's refusal was lawful and if the applicant's proposed development was in compliance with the relevant planning laws and approved documentation. The applicant contended that the Council's decision was not in accordance with the law, as the proposed development did not significantly depart from the approved plans, and that the Council had misapplied the relevant provisions of the Local Environment Plan. The Council, on the other hand, maintained that the proposed extension constituted a significant departure from the approved development, thus justifying the refusal.

The court carefully examined the evidence and submissions from both parties, focusing on the interpretation of the Local Environment Plan and the specifics of the approved development certificate and site plan. The judge concluded that the Council's decision was not erroneous, as the proposed extension indeed represented a significant departure from what had been approved. The court found that the Council had correctly exercised its discretion in rejecting the application, given the extent of the proposed changes and their impact on the surrounding environment and the character of the area. The applicant's argument that the development was consistent with the approved plans was not upheld, as the court found the changes to be substantive and not minor variations.

In light of the findings, the court dismissed the applicant's appeal, affirming the Council's decision. The court held that the Council had acted within its authority and that the refusal of the development application was lawful. The applicant was ordered to pay the Council's costs of the appeal.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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