Levy v Waverley Council

[2023] NSWLEC 1229

Land and Environment Court

New South Wales

Medium Neutral Citation:

Levy v Waverley Council [2023] NSWLEC 1229

Hearing dates:

Conciliation conference on 16 March 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to amend the application, to rely on amended plans.

(2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application, as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(3) The appeal is upheld.

(4) Development Application No 144/2022 to demolish the existing buildings, construct a dual occupancy (attached), and strata subdivision into two lots, at 39 Glenayr Avenue, North Bondi, is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – construction of a dual occupancy (attached) development – strata subdivision into two lots

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.15, 8.7

Land and Environment Court Act 1979, ss 34, 39

Waverley Local Environmental Plan 2012, cll 4.4, 4.4A, 4.6

Cases Cited:

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Anne Levy (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/290842

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No 144/2022, as amended, for the demolition of existing structures and the construction of two attached dual occupancy dwellings and strata subdivision (the proposal), at 39 Glenayr Avenue, North Bondi (the site), by Waverley Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 March 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal pursuant to cl…