Bettar v Council of the City of Sydney

[2019] NSWLEC 1489

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bettar v Council of the City of Sydney [2019] NSWLEC 1489
Hearing dates:	Conciliation conference on 11 September 2019; 4 October 2019
Date of orders:	16 October 2019
Decision date:	16 October 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans set out in Annexure A. (2) The parties agree that the amendments are minor for the purposes of Section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Development consent is granted to development application No. D/2018/1407 for alterations and additions to the existing warehouse buildings on the site to construct a four storey commercial building on the property known as 17-19 and 21 Dunning Avenue, Rosebery and being all that land comprised in Lots 27 and 28 in DP 192683 and Lot 1 in DP 89963, subject to the conditions of consent in Annexure B.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Paul Bettar (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: T Flaherty (Solicitor) (Applicant) J Mort (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) City of Sydney (Respondent)
File Number(s):	2019/10864
Publication restriction:	No

Judgment

1. COMMISSIONER: Paul Bettar (the Applicant) has appealed the deemed refusal by City of Sydney Council (the Respondent) of his development application D/2018/1407, for alterations and additions to an existing warehouse to construct a four storey commercial building (the proposed development) at 17-19 and 21 Dunning Avenue, Rosebury, also identified as Lots 27 and 28 in DP 192683 and Lot 1 in DP 89963 (the Subject Site).

2. 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.

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 has been held on 4 October 2019, and I have 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 approval of the Applicant’s modification 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 4.55(8) of the EPA Act to modify a consent grant by the Court that has been previously modified.

6. The parties confirmed that the development application had been notified by the Respondent and that no submissions had been received in response to that notification. There are no further jurisdictional prerequisites that must be satisfied before the Court can exercise the functions under s 4.16 of the EPA Act to determine the appeal.

7. 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.

8. 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.

9. The Court orders:

1. The Applicant is granted leave to rely on the amended plans set out in Annexure A.

2. The parties agree that the amendments are minor for the purposes of Section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Development consent is granted to development application No. D/2018/1407 for alterations and additions to the existing warehouse buildings on the site to construct a four storey commercial building on the property known as 17-19 and 21 Dunning Avenue, Rosebery and being all that land comprised in Lots 27 and 28 in DP 192683 and Lot 1 in DP 89963, subject to the conditions of consent in Annexure B.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (2.70 MB)

Annexure B (395 KB)

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Decision last updated: 16 October 2019