Zhang v Hunters Hill Council

[2017] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zhang v Hunters Hill Council [2017] NSWLEC 1401
Hearing dates:	Conciliation conference on 20 & 21 July 2017
Date of orders:	31 July 2017
Decision date:	31 July 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL under s97(1) against deemed refusal of an application for demolition and new dwelling construction - conciliation conference – amended design- agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Leo Zhang (Applicant) Hunters Hill Council (Respondent)
Representation:	Solicitors: McKees Legal Solutions, (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/00057823
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against Council’s deemed refusal of development application number DA206/1159. The application sought approval for the demolition of the existing building and construction of a new dwelling and pool at 2 Viret Street, Hunters Hill.

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, 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 are:

1. The Applicant is granted leave to amend the development application and rely upon the plans set out in Condition 2 of Annexure A to this agreement;

2. The appeal is upheld;

3. Development Application number DA2016/1159. for the demolition of an existing building and construction of a dwelling with ancillary landscape works and pool at 2 Viret Street, Hunters Hill is approved subject to conditions of consent set out in Annexure A to this agreement.

4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW) the applicant is to pay the respondent’s costs thrown away as agreed at $15,000 payable in 28 days.

…………….

D M Dickson

Commissioner of the Court

57823.17 Dickson (C) (493 KB, pdf)

57823.17 Dickson - Plans (5.74 MB, pdf)