NSWNSWLEC
Hurley v Sutherland Shire Council
[2016] NSWLEC 1630
Land and Environment Court (NSW)|2016-12-07
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Source factsCourt
Land and Environment Court (NSW)
Decision date
2016-12-07
Source
Original judgment source is linked above.
Judgment (14 paragraphs)
[1]
Judgment
- COMMISSIONER: In June 2016 Sutherland Shire Council approved an application for demolition of the existing dwelling, and construction of a new two storey dwelling at 6 Second Avenue, Jannali. In approving the works the Council imposed a condition on the consent requiring the house to be setback a further 1.95m from Second Avenue. The applicant is appealing to the court (under s 97(1)(a) of the Environmental Planning and Assessment Act 1979) to have this condition removed from the consent. The relevant condition is reproduced below: The dwelling must be repositioned on the site a distance of 1.95m towards the rear (south) so that the street setback is 6m measured to the upper vertical projection (above the 'architectural blade wall feature') at the front of the dwelling. In repositioning the dwelling on the site, the cut and fill within the building footprint shall remain substantially the same as detailed in the plans submitted to the Council on June 6 2016 in respect of this application and the building height shall not exceed 8.5m.
- The appeal was subject to mandatory conciliation on 7 December 2016 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).
- Prior to the commencement of the proceedings the applicant amended their development application. It was agreed between the parties that these amended plans address Councils previous concerns in relation to the dimension of the proposed double garage, and the provision of adequate landscaped area. These changes were incorporated in an updated set of architectural plans that were the subject of the proceedings (Exhibit B).
- In hearing the appeal the role of the Court (cl 39 of the LEC Act) is to assess and determine the development application based on the evidence in the proceedings and the amended plans, essentially re exercising the role of the Council in determining the application.