Arcare Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1527

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arcare Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1527
Hearing dates:	Conciliation conference on 29 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend Development Application No. 0272/18 to rely on the amended plans referred to in Condition 1 of Annexure “A”. (2) The Applicant is to pay the Respondent the sum of $3,000 within 7 days of this agreement for costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (3)   The Appeal is upheld. (4)   Development Application No. 0272/18 for tree removal and construction of a Mikvah (Bathhouse) at 27 College Crescent, St Ives is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Arcare Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: F Rourke (Solicitor) (Applicant) A Kliese (Solicitor) (Respondent)   Solicitors: Allens (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2019/63148
Publication restriction:	No

Judgment

1. COMMISSIONER: Arcare Pty Ltd (the Applicant) has appealed the deemed refusal by Ku-ring-gai Council (the Respondent) of its application to for tree removal and construction of a Mikvah (Bathhouse) (the proposed development), at 27 College Street, St Ives (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7(1) 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 was held on 29 October 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification application.

6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. The parties have explained how the proposed development has satisfied the provisions of relevant legislation, including s 4.15 of the EP&A Act, the provisions of State Environmental Planning Policy No 55 – Remediation of Land and Ku-ring-gai Local Environmental Plan 2015 and consequently, 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 Applicant is granted leave to amend Development Application No. 0272/18 to rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. The Applicant is to pay the Respondent the sum of $3,000 within 7 days of this agreement for costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The Appeal is upheld.

4. Development Application No. 0272/18 for tree removal and construction of a Mikvah (Bathhouse) at 27 College Crescent, St Ives is approved subject to the conditions set out in Annexure “A”.

…………………………

M Chilcott

Commissioner of the Court

Annexure A (118 KB, pdf)

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Decision last updated: 31 October 2019