Bellevue Road Holdings Pty Ltd v Woollahra Municipal Council

[2021] NSWLEC 1003

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bellevue Road Holdings Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1003

Hearing dates:

Conciliation conference on 12 August 2020; 21 December 2020

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition A.3 of the conditions at Annexure “A”.

(2) The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,750.00 within 28 days of these orders.

(3) The appeal is upheld.

(4) Development Application DA344/2019/1 (“DA”) for the demolition of all the existing structures (including tree removal) and construction of a new part three (3) part four (4) storey residential flat building at 142, 142A and 142B Bellevue Road, Bellevue Hill is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environment Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Bellevue Road Holdings Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2019/383250

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA 344/2019/1 for the demolition of all the existing structures (including tree removal) and construction of a new part three (3) part four (4) storey residential flat building (the proposal) at 142, 142A and 142B Bellevue Road, Bellevue Hill (the site) by Woollahra Municipal Council (the Council).

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 has been held over several months – the last date being 21 December 2020. I have presided over the conciliation conference.

3. The applicant provided amended architectural plans for the purpose of the conciliation conference and additional expert arboreal and engineering detail (the amended proposal). After assessment the experts have agreed that the amendments made to the proposal has resolved the merit issues raised by the Council and local objectors. Consequently, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. 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.

5. 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 the jurisdictional prerequisites have been satisfied.

6. Based on the documentation filed with the amended application, including the revised BASIX certificate and the planning evidence before me, 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. In that circumstance, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders that:

1. The Applicant is granted leave to rely upon the amended plans and documentation referred to in condition A.3 of the conditions at Annexure “A”.

2. The Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,750.00 within 28 days of these orders.

3. The appeal is upheld.

4. Development Application DA344/2019/1 (“DA”) for the demolition of all the existing structures (including tree removal) and construction of a new part three (3) part four (4) storey residential flat building at 142, 142A and 142B Bellevue Road, Bellevue Hill is approved subject to the conditions at Annexure “A”.

……………………….

S Dixon

Senior Commissioner of the Court

Annexure A (768315, pdf)

Design Statement (230568, pdf)

Plans (18182605, pdf)

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Amendments

21 January 2021 - Correction to typographical errors at [2] and [3].