Bechara v City of Canada Bay Council
[2018] NSWLEC 1604
•22 November 2018
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bechara v City of Canada Bay Council [2018] NSWLEC 1604 Hearing dates: Conciliation conference on 23 July 2018 and 21 August 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Class 1 Before: Blakely AC Decision: See [7] below
Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Georgette Bechara (Applicant)
City of Canada Bay Council (Respondent)Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
K Webber, Wilshere Webb Staunton Beattie (Respondent)
File Number(s): 2018/20434 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal by Georgette Bechara (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the actual refusal by the City of Canada Bay Council (the Council) of development application 2017/0384 (the application). The application seeks consent under s 4.16 of the EPA Act for the demolition of the existing dwelling and construction of a part four/part five storey residential flat building containing 10 apartments and 21 basement car parking spaces and associated landscaping works at 22 Walton Cresecent, Abbotsford.
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), which was held on 23 July and 21 August 2018. I presided over that conciliation.
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At the conciliation conference and in follow-up communication afterwards, 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 development consent to the development application subject to conditions. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.
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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 decision making function under s 4.16 of the EPA Act to grant conditional consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. Below I reference the jurisdictional prerequisites and summarise the basis of the parties’ advice on their satisfaction the Applicant is granted leave to rely on the amended plans referred to in condition 1 of the General Conditions of Annexure “A”.
22 Waltons Crescent Abbotsford, 11 October 2018.
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I have considered the advice of the parties and relevant documentation and am satisfied that the jurisdictional questions have been satisfied. 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. The jurisdictional requirements have been met in accordance with the Canada Bay Statutory Controls:
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005;
Canada Bay Local Environmental Plan 2013 (“CBLEP”);
Apartment Design Guide (as adopted by State Environmental Planning Policy No. 65);
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005;
City of Canada Bay Development Control Plan 2017 (“CBDCP 2017”);
City of Canada Bay Contaminated Land Policy;
City of Canada Bay Section 94 Contributions Plan 2017; and
Appendix 2 of the Canada Bay Development Control Plan 2017 – Engineering Specifications.
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The Court orders:
The Applicant is granted leave to rely on the amended plans referred to in condition 1 of the General Conditions of Annexure “A”.
The Applicant is to pay the Respondent’s costs arising under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $9,500.00 within 28 days of the date of these orders.
The applicant’s written request pursuant to clause 4.6 of the Canada Bay Local Environmental Plan 2013 (“CBLEP”) seeking to justify the breach of the maximum building height development standard pursuant to clause 4.3 of CBLEP dated November 2018 at Annexure “B” has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of CBLEP. Consequently, the applicant’s written request is well founded and is upheld.
The appeal is upheld.
Development Application No. 2017/0384 for the demolition of the existing dwelling and the construction of a part four (4) part five (5) storey residential flat building containing 10 apartments and 21 basement car parking spaces and associated landscaping works at 22 Walton Crescent, Abbotsford is approved subject to the conditions contained in Annexure “A”.
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Acting Commissioner Blakely
Annexure A (C) (508 KB, pdf)
Annexure B (Plans) (17.5 MB, pdf)
Annexure C (clause 4.6) (1.41 MB, pdf)
Annexure D (8.89 MB, pdf)
Amendments
20 December 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties, amend orders of 22 November 2018 so that the following order (which was previously omitted) is now included in the final orders:
“(1) The Applicant is granted leave to rely on the amended plans referred to in condition 1 of the General Conditions of Annexure “A”.
As a result of the inclusion, of the above order, all other orders have been renumbered accordingly.
Decision last updated: 20 December 2018
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