Bloom v Ku ring gai Council

[2019] NSWLEC 1072

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bloom v Ku ring gai Council [2019] NSWLEC 1072
Hearing dates:	Conciliation conference on 18 February 2019
Date of orders:	18 February 2019
Decision date:	18 February 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [8] below
Catchwords:	MODIFICATION APPLICATION: Amendments to consent conditions – Residential Dwelling - conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Melanie Bloom (Applicant) Ku ring gai Municipal Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/227269
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal made pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the conditions imposed on the determination of its application by the consent authority. The development is proposed at 5 Garnet Street, Killara. The modification application seeks to:

1. Amend a plan referenced in the consent to correct a typographical error;

2. modify the condition for the front driveway to be finished in ‘crazy paving’ as required by the Council;

3. deletion of the requirement to create an additional garden bed adjacent the driveway; and

4. delete the requirement to remove the brick pier at the centre of the garage door opening.

2. 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.

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 18 February 2019. I presided over the conciliation conference.

4. Following the conciliation conference, 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. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. This decision involved the upholding of the appeal and the granting of development consent to the development application subject to conditions.

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. The development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified; and

2. I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application.

6. 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.

7. 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.

8. The Court orders:

1. Leave is granted to the Applicant to amend Modification Application MOD0054/18 the subject of these proceedings to rely on the following documents:

• DWG DA.01 Site + Ground floor plan, Level 1 prepared by Ken Powell Architect, Rev F, Dated 14 February 2019.

• DWG DA.02 Elevations and Sections prepared by Ken Powell Architect, Rev F, Dated 14 February 2019.

2. The Appeal is upheld.

3. Modification Application MOD0054/18 seeking to modify Development Consent No. DA/0653/16 granted by the Council on 30 November 2017, is approved. The approved dwelling on land at 5 Garnet Street Killara, NSW is modified to include the widening of the driveway, covered terrace at the rear, modifications to the pool, toilet and storage areas for the pool, modifications to the tennis court area and alterations to the front of the dwelling, subject to the conditions set out in Annexure ‘A’ to this agreement.

4. As a consequence of Order (3) the Development Consent DA0653/16 is now subject to the consolidated modified conditions of consent set out in Annexure ‘A’.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (257 KB, pdf)