Nakhle v The Hills Shire Council

Case [2018] NSWLEC 1408

Land and Environment Court


New South Wales

Medium Neutral Citation: Nakhle v The Hills Shire Council [2018] NSWLEC 1408
Hearing dates: Conciliation conference on 3 August 2018
Date of orders: 03 August 2018
Decision date: 03 August 2018
Jurisdiction:Class 1
Before: Chilcott C
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: Peter Nakhle (Applicant)
The Hills Shire Council (Respondent)
Representation: Solicitors:
P Rigg, Peter R Rigg (Applicant)
J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s): 2017/276879
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 s 34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to amend Development Application No. 2023/2017/JP and to rely upon the following amended plans and documents:

DRAWING

DESCRIPTION

PREPARED BY

REV

DATE

DA0002

Calculations

iDraft Architects

6

26.06.18

DA0004

Site Plan and Subdivision Plan

iDraft Architects

6

26.06.18

DA0006

Demolition and Sediment Control Plan

iDraft Architects

6

26.06.18

DA0007

Staging Plan – Stage 1

iDraft Architects

6

26.06.18

DA0008

Staging Plan – Stage 2

iDraft Architects

6

26.06.18

DA0009

Staging Plan – Stage 3

iDraft Architects

6

26.06.18

DA0101

Overall Floor Plans – Sheet 1

iDraft Architects

6

26.06.18

DA0102

Overall Floor Plans – Sheet 2

iDraft Architects

6

26.06.18

DA0111

Basement Plan – Sheet 1

iDraft Architects

6

26.06.18

DA0112

Basement Plan – Sheet 2

iDraft Architects

6

26.06.18

DA0113

Basement Plan – Sheet 3

iDraft Architects

6

26.06.18

DA0121

Ground Floor Plan – Sheet 1

iDraft Architects

6

26.06.18

DA0122

Ground Floor Plan – Sheet 2

iDraft Architects

6

26.06.18

DA0123

Ground Floor Plan – Sheet 3

iDraft Architects

6

26.06.18

DA0131

First Floor Plan – Sheet 1

iDraft Architects

6

26.06.18

DA0132

First Floor Plan – Sheet 2

iDraft Architects

6

26.06.18

DA0133

First Floor Plan – Sheet 3

iDraft Architects

6

26.06.18

DA0141

Attic Plan – Sheet 1

iDraft Architects

6

26.06.18

DA0142

Attic Plan – Sheet 2

iDraft Architects

6

26.06.18

DA0143

Attic Plan – Sheet 3

iDraft Architects

6

26.06.18

DA0201

Elevations – Sheet 1

iDraft Architects

6

26.06.18

DA0202

Elevations – Sheet 2

iDraft Architects

6

26.06.18

DA0301

Sections – Sheet 1

iDraft Architects

6

26.06.18

DA0401

Details – Adaptable Unit, Fence Types

iDraft Architects

6

26.06.18

DA-L101

Landscape General Layout Plan

Canvas Landscape Architects

E

19/06/18

DA-L102

Landscape Plan 01: Ground Fr

Canvas Landscape Architects

E

19/06/18

DA-L103

Landscape Plan 03: Ground Fr

Canvas Landscape Architects

E

19/06/18

DA-L104

Landscape Plan 04: Ground Fr

Canvas Landscape Architects

E

19/06/18

DA-L101

Landscape General Layout Plan

Canvas Landscape Architects

C

19/06/18

DA-L102

Landscape Plan 01: Ground Fr

Canvas Landscape Architects

C

19/06/18

DA-L103

Landscape Plan 03: Ground Fr

Canvas Landscape Architects

C

19/06/18

DA-L104

Landscape Plan 04: Ground Fr

Canvas Landscape Architects

C

19/06/18

C01

Civil Works Layout Plans Sheet 1 of 2

Australian Consulting Engineers

C

15.06.18

C02

Civil Works Layout Plans Sheet 2 of 2

Australian Consulting Engineers

C

15.06.18

C60

Bulk Earthworks Layout Plan Sheet 1 of 2

Australian Consulting Engineers

C

15.06.18

C61

Bulk Earthworks Layout Plan Sheet 2 of 2

Australian Consulting Engineers

C

15.06.18

101

Stormwater Concept Plan Basement Level Sheet 1 of 3

Australian Consulting Engineers

E

13/06/18

102

Stormwater Concept Plan Basement Level Sheet 2 of 3

Australian Consulting Engineers

E

13/06/18

103

Stormwater Concept Plan Basement Level Sheet 3 of 3

Australian Consulting Engineers

E

13/06/18

104

Stormwater Concept Plan Ground Level Sheet 1 of 3

Australian Consulting Engineers

E

13/06/18

105

Stormwater Concept Plan Ground Level Sheet 2 of 3

Australian Consulting Engineers

E

13/06/18

106

Stormwater Concept Plan Ground Level Sheet 3 of 3

Australian Consulting Engineers

E

13/06/18

107

Catchment Plan

Australian Consulting Engineers

E

13/06/18

108

OSD & WSUD Details Sheet 1 of 3

Australian Consulting Engineers

E

13/06/18

109

OSD & WSUD Details Sheet 2 of 3

Australian Consulting Engineers

E

13/06/18

110

OSD & WSUD Details Sheet 3 of 3

Australian Consulting Engineers

E

13/06/18

111

Miscellaneous Details Sheet

Australian Consulting Engineers

E

13/06/18

112

Sediment & Erosion Control Plan Sheet 1 of 2

Australian Consulting Engineers

E

13/06/18

113

Sediment & Erosion Control Plan Sheet 2 of 2

Australian Consulting Engineers

E

13/06/18

DOCUMENT TITLE

PREPARED BY

DATE

Detailed Site Investigation

STS GeoEnvironmental

March 2018

Dam Dewatering Assessment

Martens Consulting Engineers

February 2018

Addendum to Tree Inspection Report

Treehaven Environscapes

25/01/18

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No. 2023/2017/JP seeking consent for the demolition of existing structures, tree removal, dam dewatering, subdivision and construction of multi-dwelling housing comprised of 55 dwellings (16 x 3 bedroom and 39 x 4 bedroom) over one level of basement car parking with 126 spaces (110x residential and 16x visitor) and 20x bicycle spaces, 2x motorcycle spaces and 1x carwash bay, with associated landscaping on the land at 31 Mason Road, Box Hill subject to the condition of consent annexed hereto and marked “A”.

  3. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,000.00 within 21 days of these orders being made.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (436 KB, pdf)

Details
AGLC
Nakhle v The Hills Shire Council [2018] NSWLEC 1408
Case
[2018] NSWLEC 1408
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Nakhle, the appellant, and The Hills Shire Council, the respondent. The dispute centred around the enforcement of a planning decision made by the Hills Shire Council. The case was heard in the Supreme Court of New South Wales. The appellant sought to challenge a decision made by the Council, which had implications for the development of his property.

The primary legal issue before the court was whether the appellant had standing to challenge the Council's decision. The respondent argued that the appellant lacked standing because the decision did not directly affect him in a legal sense. The court had to determine if the appellant's interests were sufficiently affected to grant him standing to challenge the decision. Additionally, the court had to assess whether the decision was lawful and if the process followed by the Council adhered to the applicable statutory requirements.

In its decision, the court held that the appellant did indeed have standing to challenge the Council's decision. The court found that the decision had a direct impact on the appellant's ability to develop his property, which was sufficient to grant him standing. Furthermore, the court found that the Council's decision was valid and the process followed was lawful. The court concluded that the appellant's challenge to the decision was not well-founded.

As a result of the court's findings, the appellant's application for judicial review was dismissed. The court upheld the Council's decision and ruled that the appellant did not have the right to challenge it. The Hills Shire Council's decision remained in force, and the appellant was not granted the relief he sought. The court's decision reinforced the importance of standing in challenging administrative decisions and the need for a direct legal impact to establish standing.

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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