Padovan v Hunters Hill Council

[2019] NSWLEC 1185

Land and Environment Court

New South Wales

Medium Neutral Citation:	Padovan v Hunters Hill Council [2019] NSWLEC 1185
Hearing dates:	Conciliation conference on 15 April 2019
Date of orders:	23 April 2019
Decision date:	23 April 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hunters Hill Local Environmental Plan 2012 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	Soya Padovan (First Applicant) Michael Padovan (Second Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: Mr S Kondilios, Hall Wilcox Lawyers (First and Second Applicant) Mr J Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/284810
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application 2017/1154. As amended the application seeks consent for demolition of the existing dwelling and construction of a new three level dwelling, comprising of a basement level and two residential levels above, a swimming pool and landscaping at 26 Joubert Street, Hunters Hill (Lot 34 in DP 9243).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 16 April 2019. Following the conciliation an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The property is zoned R2 Low Density Residential Zone under the Hunters Hill Local Environmental Plan 2012 (LEP 2012). Dwelling houses are permitted with consent in the zone.

2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered.

3. The proposed development is compliant with the relevant development standards in LEP 2012.

4. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a BASIX certificate has been lodged (Certificate Number: 796025S_02).

5. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

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

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A;

2. The Appeal is upheld;

3. Development consent is granted for Development Application DA2017-1154 for the demolition of the existing home and construction of a new dwelling at 26 Joubert Street, Hunters Hill NSW 2110, subject to the conditions set out in Annexure A.

……………………….

D M Dickson

Commissioner of the Court

Annexure A