14 Boronia Pty Ltd (ACN 624 963 355) v Woollahra Municipal Council

[2020] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:	14 Boronia Pty Ltd (ACN 624 963 355) v Woollahra Municipal Council [2020] NSWLEC 1193
Hearing dates:	Conciliation conference on 30 January 2020
Date of orders:	28 April 2020
Decision date:	28 April 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders: (1) Leave is granted to amend the application for development consent by relying on the amended plans referred to in condition A.3 in Annexure ''A". (2) The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $4,250. (3) The appeal is upheld. (4) Development consent to development application no. DA105/2019 for the demolition of existing dwelling and construction of residential flat building at 14 Boronia Road, Bellevue Hill is granted subject to the conditions contained in Annexure "A".
Catchwords:	DEVELOPMENT– residential flat building - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	14 Boronia Pty Ltd (ACN 624 963 355) (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel A Boskovitz (Solicitor) (Applicant) D Le Breton (Solicitor) (Respondent)   Solicitors: Boskovitz Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/215442
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 Environmental Planning and Assessment Act 1979 against the refusal by the Respondent of development application no. DA105/2019 for the demolition of existing dwelling and construction of residential flat building at 14 Boronia Road, Bellevue Hill NSW (the site).

2. On 30 January 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached an agreement in principle as to the form of the development, amendments to be made and additional information to be provided to the Respondent.

4. On 6 April 2020 the parties filed an agreement pursuant to s 34 LEC Act, recording their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, make a consequential costs order, uphold the appeal and grant development consent to the development application subject to conditions.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The following jurisdictional prerequisites relevant in this case have been satisfied so this function can be exercised:

1. the site is zoned R3 pursuant to Woollahra Local Environmental Plan 2014 (WLEP) pursuant to which residential flat buildings are a permissible use;

2. the proposed development does not contravene any development standard in the WLEP or any other applicable environmental planning instrument. In particular, there is no non-compliance with the Height and Floor Space Ratio controls in WLEP;

3. a sulphate soils management plan has been provided in accordance with cl 6.1 CLEP;

4. consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (SEPP 55). Given the long-term use of the site for residential purposes, the subject site is not likely to be contaminated. Material has been provided in satisfaction of cl 7 of SEPP 55;

5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. A BASIX certificate has been provided in compliance with that Policy; and

6. Consideration has been given to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development and a Design Verification Statement has been provided.

7. The parties are not aware of any other legal reasons preventing the Court from making the orders and approving the development application.

8. 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.

9. 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.

10. 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 EPA Act.

11. The Court orders:

1. Leave is granted to amend the application for development consent by relying on the amended plans referred to in condition A.3 in Annexure ''A".

2. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $4,250.

3. The appeal is upheld.

4. Development consent to development application no. DA105/2019 for the demolition of existing dwelling and construction of residential flat building at 14 Boronia Road, Bellevue Hill is granted subject to the conditions contained in Annexure "A".

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (607 KB)

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