266 Mona Vale Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation:	266 Mona Vale Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1065
Hearing dates:	Conciliation conference on 11 February 2019
Date of orders:	18 February 2019
Decision date:	18 February 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders at [8] below
Catchwords:	DEVELOPMENT APPLICATION: modification application – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Texts Cited:	Ku-ring-gai Development Control Plan 2016
Category:	Principal judgment
Parties:	266 Mona Vale Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) M Hanna, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/186172
Publication restriction:	No

Judgment

1. COMMISSIONER: 266 Mona Vale Rd Pty Ltd (the Applicant) has appealed the refusal of Ku-ring-gai Council (the Respondent) of his modification application made under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act), to modify development consent DA0280/2016, granted on 20 January 2017. The modification application seeks to grant consent for the Applicant to infill with louvered windows the second storey balcony of Unit 4 at 266 Mona Vale Road, St Ives (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.9 of the EPA Act, and falls within Class 1 of the Court’s jurisdiction. These proceedings are determined pursuant to the provisions of s 8.14 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 11 February 2019, and I presided over the conciliation conference.

4. At the conciliation conference, the Parties advised that they had reached agreement as to the terms of a decision in the proceedings and that the terms were 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 8.14 of the EPA Act to grant consent to the modification application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and the basis upon which satisfaction is has been reached on each, are as follows:

1. The modification application is made under s 4.55 of the EPA Act, which requires that the consent authority, or the Court on appeal, may modify the consent if:

1. it is satisfied that the proposed modification is of minimal environmental impact, and I am so satisfied;

2. it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and I am so satisfied;

3. the application has been appropriately notified. The Respondent had notified the application in accordance with requirement of the Part 25 of the Ku-ring-gai Development Control Plan 2016, and no submissions were received in response to that notification;

7. 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.

8. The Court orders:

1. Leave is granted to the Applicant to amend Modification Application MOD0172/17 the subject of these proceedings to rely on the following document:

1. SK01 Revision A Unit 4 Terrace Plan dated 24 September 2018;

2. The appeal is upheld;

3. Modification Application MOD0172/17 seeking to modify Development Consent No. DA0280/2016, granted by the Land and Environment Court of NSW on 20 January 2017, is approved. The seniors living development comprising of 6 apartments and associated landscaping on land at 266 Mona Vale Road, St Ives, NSW, is modified to include louvers on the balcony of Unit 4, subject to the conditions set out in Annexure "A" to this agreement.

4. As a consequence of Order (3), the Development Consent No. DA0280/2016 is now subject to the consolidated modified conditions of consent set out in Annexure "A".

………………………..

Michael Chilcott

Commissioner of the Court

Annexure A

Plan

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Decision last updated: 18 February 2019