McBurney v Northern Beaches Council [2019] NSWLEC 1098

Land and Environment Court New South Wales

Medium Neutral Citation: McBurney v Northern Beaches Council [2019] NSWLEC 1098 Hearing dates: Conciliation conference on 7 March 2019 Date of orders: 20 March 2019 Decision date: 20 March 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [11] below Catchwords: DEVELOPMENT APPLICATION: 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: Dax McBurney (First Applicant) Kate McBurney (Second Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicants)

Solicitors: Mills Oakley (Applicants) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2018/215027 Publication restriction: No

Judgment 1. COMMISSIONER: Dax McBurney (First Applicant) and Kate McBurney (Second Applicant) have appealed the deemed refusal by Northern Beaches Council (the Respondent) of their development application (DA2017/3148) for construction of a new tennis court, tree removal, tree replacement and associated works at Lot 5 DP 1196894 also identified as 5 Bibbenluke Avenue, Duffys Forest (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 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 7 March 2019, and I 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 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. 6. The Parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised. 8. The Parties have identified the jurisdictional prerequisite of relevance in these proceedings, and the basis upon which satisfaction has been reached on it, to be as follows: 1. EPA Act s 4.14 concerning consultation and development consent on certain bushfire prone land, and in relation to which: 1. the Applicants have provided a certificate by a person who is recognised by the NSW Rural Fire Service (RFS) as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements; 2. The Respondent Council has referred the application to the RFS and has received recommended conditions of consent (which have been incorporated into the conditions of consent set out in Annexure "A" to this judgment); 1. 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. 2. 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. 3. The Court orders: 1. The Applicant is granted leave to amend the development application which is the subject of these proceedings in accordance with the amended drawings and other amended material set out in condition 1 in Annexure "A". 2. The appeal is upheld. 3. Development Application No. 2017/1348, which was lodged with the Respondent on 22 December 2017, for construction of a tennis court at 5 Bibbenluke Avenue, Duffys Forest, is approved subject to the conditions contained in Annexure "A". ………………………. Michael Chilcott Commissioner of the Court Annexure A 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: 20 March 2019