Arkibis Pty Ltd t/a Arkhaus v Sutherland Shire Council
[2019] NSWLEC 1252
•07 June 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Arkibis Pty Ltd t/a Arkhaus v Sutherland Shire Council [2019] NSWLEC 1252 Hearing dates: Conciliation conference on 24 May 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders:
(1) The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.
(2) The Applicant is to pay the Respondent’s s 8.15(3) costs thrown away in the proceeding in the agreed amount of $5,000.
(3) The appeal is upheld.
(4) Development application DA18/0720 seeking the demolition of existing structures and construction of a boarding house containing 26 boarding rooms over basement car parking, is determined by the grant of consent, subject to the conditions attached 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 1979Category: Principal judgment Parties: Arkibis Pty Ltd t/a Arkhaus (Applicant)
Sutherland Shire Council (Respondent)Representation: Solicitors:
V Conomos, Conomos Legal (Applicant)
J Amy, Sutherland Shire Council (Respondent)
File Number(s): 2018/236221 Publication restriction: No
Judgment
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COMMISSIONER: Arkibis Pty Ltd t/a Arkhaus (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of its application (DA18/0720) for the demolition of existing structures, and construction of a boarding house containing 26 boarding rooms, over basement car parking, at 108 Flora Street, Sutherland (the Subject Site).
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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.
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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 24 May 2019, and I presided over the conciliation conference.
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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.
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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.
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There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.
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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.
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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.
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The Court orders:
The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.
The Applicant is to pay the Respondent’s s 8.15(3) costs thrown away in the proceeding in the agreed amount of $5,000.
The appeal is upheld.
Development application DA18/0720 seeking the demolition of existing structures and construction of a boarding house containing 26 boarding rooms over basement car parking, is determined by the grant of consent, subject to the conditions attached in Annexure ‘A’.
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M Chilcott
Commissioner of the Court
Annexure A (347 KB)
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Decision last updated: 07 June 2019
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