Baron Corporation Pty Ltd v Woollahra Municipal Council

Case •

[2019] NSWLEC 1575

•

29 November 2019

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Baron Corporation Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1575
Hearing dates: Conciliation conference on 23 October 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction:Class 1
Before: Dickson C
Decision:

The Court orders that:
(1) Leave is granted to the Applicant to rely upon the amended plans in Annexure ‘A’, and listed in Condition A.2(d) of Annexure B.
(2) The Appeal is upheld.
(3) The Class 1 appeal against the deemed refusal of modification application DA 584/2014/14 at 39 Carlota Road, Double Bay is determined by approving the modifications set out in Annexure B.
(4) As a consequence of Order 3 above, Development Consent No. DA584/2014 is now subject to the consolidated, modified conditions of development consent set out in Annexure C.

Catchwords: MODIFICATION APPLICATION – conciliation conference – amended design – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Woollahra Local Environmental Plan 2014
Category:Principal judgment
Parties: Baron Corporation Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation:

Counsel:
T Flaherty (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)
File Number(s): 2019/53787
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its modification application DA/2014/584/5. The modification application seeks approval for the modification of previously non- habitable spaces into habitable spaces as well as additional excavation, glazed door and window openings (dwelling house at number 39A) and the amendment of the external material (dwelling house at number 39B) to timber cladding. The development is proposed at 39 Carlotta Road, Bellevue Hill.

  2. 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 been held on 23 October 2019. I presided over the conciliation conference.

  3. 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.

  4. 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 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 modification, sought under s 4.55(2) of the EPA Act is substantially the same development as the development for which the consent was originally granted.

  2. Pursuant to s 4.55(3) of the EPA Act, I have taken into consideration the matters of relevance to the application under s 4.15(1) of the EPA Act and the reasons given by the consent authority for the grant of consent.

  3. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the modification application which is accompanied by BASIX certificate number: 598438M_04 in compliance with the instrument.

  4. In deciding whether to grant development consent for the ancillary earthworks proposed by the application, I have given consideration to the matters at cl 6.2 of the Woollahra Local Environmental Plan 2014.

  5. The modification application was notified in accordance with the relevant development control plan and the submissions have been considered.

  1. 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.

  2. 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.

  3. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

  1. Leave is granted to the Applicant to rely upon the amended plans in Annexure ‘A’, and listed in Condition A.2(d) of Annexure B.

  2. The Appeal is upheld.

  3. The Class 1 appeal against the deemed refusal of modification application DA 584/2014/14 at 39A Carlota Road, Double Bay is determined by approving the modifications set out in Annexure B.

  4. As a consequence of paragraph 2(c) above, Development Consent No. DA584/2014 is now subject to the consolidated, modified conditions of development consent set out in Annexure C.

………………………………

D M Dickson

Commissioner of the Court

Annexure A Plans (10.9 MB)

Annexure B (189 KB)

Annexure C (779 KB)

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Decision last updated: 29 November 2019

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