512 Bunnerong Road Pty Ltd v Randwick City Council

[2019] NSWLEC 1286

Land and Environment Court

New South Wales

Medium Neutral Citation:	512 Bunnerong Road Pty Ltd v Randwick City Council [2019] NSWLEC 1286
Hearing dates:	Conciliation conference on 21 June 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended drawing referred to in Condition 1 of Annexure A for the purposes of the development application; (2) The Appeal is upheld; (3) Modification Application No. DA335/2015/B to modify Development Consent No. DA335/2015 for the purposes of deleting conditions 2(b) and 2(h) from the original consent as modified (DA/335/2015/A) is determined by approving the modifications as set out in Annexure “A”. (4) As a consequence of order (3), Development Consent No, DA/335/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure “B”.
Catchwords:	MODIFICATION APPLICATION – deletion of conditions - 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:	512 Bunnerong Road Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: M Sonter, Mills Oakley (Applicant) K Gerathy, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/139565
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its modification application DA/335/2015B. The original development application (DA/335/2015) sought consent for demolition and construction of a part 4, part 5 storey mixed use and shop top housing development. The subject site is located at 512 Bunnerong Road, Mattraville.

2. This Modification Application proposes the deletion of condition 2(b) from the original consent and condition 2(h) from a previous modification application (DA/335/2015A). The relevant conditions are reproduced below:

Condition 2(b) of DA/335/2015 states:

Amendment of Plans and Documentation

(b) in order to allow for natural light and ventilation to the lobby areas on Levels 2 and 3 to ‘Building A’, a recessed slot shall be provided through Bedrooms 1 to apartments 6 & 10 on the 2nd and 3rd floor levels to align with the built form of apartment 1 on the first floor. Details are to be provided to Council’s Manager Development Assessment for approval prior to the issuing of a Construction Certificate.

Condition 2(h) of DA/225/2015/A states:

The extension to the southern side of Unit 11 shall be deleted from the approved plans.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55(2) of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 21 June 2019. Following the conciliation an agreement under s 34(3) of the LEC 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 4.55(1A) of the EPA Act.

5. 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 LEC Act). I have formed this state of satisfaction for the following reasons:

1. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

2. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. A single submission was received by the Council in response to the notification. The submission raises no issues directly relevant to the modification application.

6. 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.

7. 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 EPA Act.

8. 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 amended drawing referred to in Condition 1 of Annexure A for the purposes of the development application;

2. The Appeal is upheld;

3. Modification Application No. DA335/2015/B to modify Development Consent No. DA335/2015 for the purposes of deleting conditions 2(b) and 2(h) from the original consent as modified (DA/335/2015/A) is determined by approving the modifications as set out in Annexure “A”.

4. As a consequence of order (3), Development Consent No, DA/335/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure “B”.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (217 KB)

Annexure B (501 KB)