Boom Industries Pty Ltd v Randwick City Council

[2019] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boom Industries Pty Ltd v Randwick City Council [2019] NSWLEC 1118
Hearing dates:	Conciliation conference on 22 March 2019
Date of orders:	25 March 2019
Decision date:	25 March 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See [9] below
Catchwords:	DEVELOPMENT APPEAL against deemed refusal - conciliation conference – modification application - agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Randwick Local Environment Plan 2012
Category:	Principal judgment
Parties:	Boom Industries Pty Ltd (Applicant) Randwick City Council (Respondent)
Representation:	Solicitors: M Sonter, Mills Oakley (Applicant) V McGrath, Norton Rose Fulbright Australia (Respondent)
File Number(s):	2018/233624
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a modification application brought before the Court under s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) being DA/380/2017/A seeking addition of operable windows to balconies, addition of internal door to bike/waste storage area, changes to first floor maintenance doors, and alteration to some external materials.

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 held on 22 March 2019. I presided over the conciliation conference.

3. 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 upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 March 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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.

6. 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.

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, for the following reasons:

1. In accordance with s 4.55 of the EPA Act, I have considered relevant matters pursuant to s 4.15(1) of the EPA Act in determining an application for modification of a consent under this section. In doing so, I consider the proposed modification is of minimal environmental impact, and

2. I am satisfied that the development to which the consent as modified relates is substantially the same development in accordance with subss 4.55(1A)(a) and (b) of the EPA 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 final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to amend the development application and rely on plans contained in Condition 2 of Annexure ‘A’.

2. The Appeal is upheld.

3. The modification of development application DA/380/2017/A for the addition of operable louvred panels with glass backing to balconies, the addition of internal door to bike/waste storage area, changes to first floor maintenance doors and alteration to some external materials to the approved residential flat building at 16 Asher Street, Coogee is granted consent, subject to the schedule of amended conditions set out in Annexure “A”.

4. Annexed and marked “B” is a set of the consolidated version of the conditions of consent, as modified.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (110 KB, pdf)

Annexure B (421 KB, pdf)

Plans (5.59 MB, pdf)

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Decision last updated: 25 March 2019