Carusi v Hunter’s Hill Council [2018] NSWLEC 1649

Land and Environment Court New South Wales

Medium Neutral Citation: Carusi v Hunter's Hill Council [2018] NSWLEC 1649 Hearing dates: Conciliation conference on 4 – 5 December 2018 Date of orders: 14 December 2018 Decision date: 14 December 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See [9] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Tino Carusi (Applicant) Hunter's Hill Council (Respondent) Representation: Solicitors: M Sonter, Mills Oakley (Applicant) A Epstein, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/129031 Publication restriction: No

Judgment 1. COMMISSIONER: Tino Carusi (the Applicant) has appealed the actual refusal by Hunters Hill Council (the Respondent) of his application for a review of Council's refusal of his development application DA2017-1004 for construction of a two storey dwelling house on the site of a former tennis court that adjoins a single storey heritage item at 299 Woolwich Road, Hunters Hill (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act. 3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 4 and 5 December 2018. I have presided over the conciliation conference. 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions. 5. Under the provisions of s 34AA(2) and 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are no jurisdictional prerequisites in the matter that must be satisfied before this function can be exercised. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 8. 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. 9. The Court orders: 1. The Applicant is granted leave to rely on the amended drawings annexed hereto and marked "A". 2. The Applicant is to pay the Respondent's reasonable costs thrown away in relation to dealing with the amended plans in the agreed amount of $7,000 within 24 days. 3. The appeal is upheld. 4. Development consent is granted to Development Application No. 2017-1004 for construction of a dwelling, swimming pool and associated landscaping at 29 Woolwich Road, Woolwich subject to the conditions of consent annexed hereto and marked "B". ………………………. Michael Chilcott Commissioner of the Court Annexure A (4.54 MB, pdf) Annexure B (361 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018