Australia, Jan. 23 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 24:

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Hills Shire Council of development application DA 893/2024/LD (the DA). The DA sought the construction of a three-storey dwelling house with double car garage, in ground swimming pool and landscaping on the land at 81 Castle Hill Road, West Pennant Hills (Lot 1 DP 135622) (the site).

2. The Hills Shire Council (the First Respondent) filed its Statement of Facts and Contentions (SOFAC) with the Court on 5 July 2024. Sydney Metro (the Second Respondent) filed its SOFAC with the Court on 13 August 2024. The Applicant filed a SOFAC in reply with the Court on 16 August 2024.

3. The Court arranged a conciliation conference under subs 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 4 October 2024. I presided over the conciliation conference, which commenced with an on-site view. There were no submissions on the DA.

4. At the first day of the conciliation conference, the parties advised that they had reached an in-principle s 34 agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

5. Accordingly, the hearing was adjourned, and the matter proceeded under s 34 of the LEC Act. This decision involved the Court upholding the appeal and granting development consent to the DA, subject to conditions.

6. The signed s 34 agreement and Annexure A (conditions of consent) and amended plans (the amended DA) were filed with the Court on 4 October 2024. The s 34 agreement was supported by an agreed statement of jurisdictional prerequisites (Jurisdictional Statement). The Jurisdictional Statement was filed with the Court on 4 October 2024.

7. The parties advise that the amended DA satisfactorily addresses the contentions raised by the Respondents in their SOFAC's.

8. The amended DA includes revised architectural drawings, landscape plan and vegetation management plan, and a revised Piles Plan for the lower ground floor terrace of the proposed dwelling. The amendments include reducing the extent of the lowest terrace of the proposed dwelling and providing for a stormwater connection to the rear of the site. A vegetation management area has been defined at the rear of the proposed development.

9. Stormwater is to be dealt with through the imposition of a deferred commencement condition which will require the registration of a drainage easement or easement(s) over all downstream properties required to facilitate drainage to the watercourse on Lot 1 DP343971. (Refer to par [39]).

10. 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. 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.

11. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the DA.

12. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a written submission accompanying the s 34 agreement, and those requirements have been satisfied as follows.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193f07dca64f78eee29e0c7e)

Disclaimer: Curated by HT Syndication.