Ham v Mosman Municipal Council [2018] NSWLEC 1672

Land and Environment Court New South Wales

Medium Neutral Citation: Ham v Mosman Municipal Council [2018] NSWLEC 1672 Hearing dates: Conciliation conference on 19 December 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [7] below Catchwords: DEVELOPMENT APPLICATION: new residential dwelling; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Kiam Ham (Applicant) Mosman Municipal Council (Respondent) Representation: Solicitors: G Hartley, Hartley Solicitors (Applicant) M Hanna, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/324607 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Mr Kiam Ham against the refusal by Mosman Municipal Council of development application 8.2018.15.1. This appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The application is seeking consent for demolition of a dwelling house and construction of a new dwelling house with attached double garage. The works are proposed at 8 Burton Street, Mosman (Lot 41 in DP 8608). 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. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the Court Act) between the parties, which was held on 20 December 2018. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the Court 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 Court Act). I have formed this state of satisfaction for the following reason: 1. The proposed development (demolition and residential accommodation: dwelling house) is permissible in the R2 Low Density Residential zone. 1. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 2. 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 Court Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The applicant is granted leave to rely on the plans listed under Condition 1 below the heading '1'. The development shall be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent' in Annexure 'A'. 2. Appeal upheld; and 3. Development application number 8.2018.15.1 for the demolition of a dwelling house and construction of new dwelling house with attached double garage, terrace to the front, garden shed at the rear and landscaping at 8 Burton Street, Mosman is approved subject to the conditions in Annexure 'A'. ………………………. D M Dickson Commissioner of the Court Annexure A (341 KB, pdf) Plans (2.05 MB, 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: 21 January 2019