Arnold v Northern Beaches Council

[2019] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:	Arnold v Northern Beaches Council [2019] NSWLEC 1260
Hearing dates:	Conciliation conference on 6 June 2019
Date of orders:	11 June 2019
Decision date:	11 June 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend the development application to rely upon amended architectural plans referred to in condition A of Annexure ‘A’, and the written request to vary the floor space ratio control in clause 4.4 of Manly Local Environmental Plan 2013, prepared by Geoff Goodyer, dated 6 June 2019. (2)   The written request to vary the floor space ratio control in clause 4.4 of Manly Local Environmental Plan 2013, prepared by Geoff Goodyer, dated 6 June 2019, is upheld. (3)   The Appeal is upheld. (4)   Development Application DA2018/0128 for demolition of existing structures and construction of a new dwelling house at 65 Bower Street, Manly is approved, subject to the conditions 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 1979 Manly Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Mark Arnold (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) F Berglund (Respondent)   Solicitors: Sattler & Associates Pty Ltd (Applicant) Northern Beaches Council (Respondent)
File Number(s):	2018/307546
Publication restriction:	No

Judgment

1. COMMISSIONER: Mark Arnold (the Applicant) has appealed the refusal by Northern Beaches Council (the Respondent) of his development application (DA) DA2018/0128 for the demolition of existing structures and construction of a new dwelling house at 65 Bower Street, Manly (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 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 6 June 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 development application.

6. There is one jurisdictional precondition that must be satisfied before this function can be exercised. This relates to a contravention of the floor space ratio (FSR) development standard under the provisions of cl 4.4 of Manly Local Environmental Plan 2013 (MLEP).

7. The Applicant has submitted a written request to vary that development standard under the provisions of cl 4.6 of MLEP, and the Parties submitted that this request had demonstrated that:

1. the development meets the objectives of the FSR standard at cl. 4.4 of MLEP, notwithstanding the contravention of the development standard;

2. there are sufficient environmental planning grounds to justify contravening the FSR development standard;

3. the proposed development meets the objectives of the E3 zone within which zone the development is proposed to be carried out; and

4. the proposed development is in the public interest.

8. Having considered the advice of the Parties provided above at [7], and having read and considered the Applicant’s written request submitted under the provisions of cl 4.6 of MLEP, I agree that the Applicant’s written request is well founded, the proposed development is in the public interest, and that the jurisdictional precondition on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act has been so satisfied.

9. I am further 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.

10. 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.

11. The Court orders:

1. The Applicant is granted leave to amend the development application to rely upon amended architectural plans referred to in condition A of Annexure ‘A’, and the written request to vary the floor space ratio control in clause 4.4 of Manly Local Environmental Plan 2013, prepared by Geoff Goodyer, dated 6 June 2019.

2. The written request to vary the floor space ratio control in clause 4.4 of Manly Local Environmental Plan 2013, prepared by Geoff Goodyer, dated 6 June 2019, is upheld.

3. The Appeal is upheld.

4. Development Application DA2018/0128 for demolition of existing structures and construction of a new dwelling house at 65 Bower Street, Manly is approved, subject to the conditions in Annexure ‘A’.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (282 KB)

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Decision last updated: 11 June 2019