Hoynes v City of Sydney Council [2019] NSWLEC 1189

Land and Environment Court New South Wales

Medium Neutral Citation: Hoynes v City of Sydney Council [2019] NSWLEC 1189 Hearing dates: Conciliation conference on 24 April 2019 Date of orders: 30 April 2019 Decision date: 30 April 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: (1) The appeal is upheld. (2) Development application DA/2018/877 for the extension of the basement approved under D/2017/1749 at 524 Bourke Street, Surry Hills (Lot 9, DP236539) is approved subject to the conditions in Annexure 'A'. 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: Andrew Hoynes (Applicant) City of Sydney Council (Respondent) Representation: Counsel: M Staunton (Applicant)

Solicitors: Colin Biggers & Paisley (Applicant) A Singh, City of Sydney Council (Respondent) File Number(s): 2018/279916 Publication restriction: No

Judgment 1. COMMISSIONER: Andrew Hoynes (the Applicant) has appealed the deemed refusal by City of Sydney Council (the Respondent) of his development application (DA/2018/877) for the extension of the basement, already approved under D/2017/1749, at 524 Bourke Street, Surry Hills (Lot 9, DP236539) (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. 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 has been held on 24 April 2019, and 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 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 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 appeal is upheld. 2. Development application DA/2018/877 for the extension of the basement approved under D/2017/1749 at 524 Bourke Street, Surry Hills (Lot 9, DP236539) is approved subject to the conditions 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: 30 April 2019