Boston Blyth Fleming v Northern Beaches Council

[2019] NSWLEC 1302

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boston Blyth Fleming v Northern Beaches Council [2019] NSWLEC 1302
Hearing dates:	Conciliation conference on 20 June 2019
Date of orders:	02 July 2019
Decision date:	02 July 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders (1)The Applicant is granted leave to amend Modification Application No N0183/15 (as modified) by deleting the request to delete Condition B13 as set out in the Statement of Environmental Effects dated 28 May 2018 prepared by Boston Blyth Fleming; (2)The Appeal is upheld; (3)Modification Application No N0183/15 for modification of Development Consent No.N0183/15 (as modified) to amend floor plans at 2 Park Street (Mona Vale Hotel), Mona Vale NSW is approved in accordance with the conditions as set out in Annexure ‘A’ and the Plan of Management dated June 2019 as set out in Annexure ‘C’; (4)As a consequence of Order (3), Development Consent No.N0183/15 (as modified) is now subject to consolidated, modified conditions of development consent set out in Annexure ‘B’.
Catchwords:	MODIFICATION 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:	Boston Blyth Fleming (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: A Sattler, Sattler and Associates (Applicant) E Roberts, Northern Beaches Council (Respondent)
File Number(s):	2018/334997
Publication restriction:	No

Judgment

1. COMMISSIONER Boston Blyth Fleming (the Applicant) has appealed to the Court to modify a development consent N0183/15 granted by the Court in its appeal against the refusal of its original development application by Northern Beaches Council (the Respondent).

2. The modification application proposes amendments to the internal layout of a first floor kitchen, bar and toilets, construction of a new retractable roof over an upper level courtyard and deletion of a condition of consent (the modification application) at Lot 1 in DP 652476, also identified as 2 Park Street, in Mona Vale (the Subject Site).

3. The appeal comes to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

4. These proceedings are determined pursuant to the provisions of s 4.55(2) of the EP&A Act.

5. 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 20 June 2019, and I have presided over the conciliation conference.

6. 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 consent to the Applicant’s modification application, subject to conditions.

7. 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 of the EP&A to grant consent to the modification application.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised as follows:

1. the provisions of s 4.55(2) of the EP&A Act which require that a consent authority:

1. is satisfied that the development, to which the consent as modified relates, is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified (if at all);

2. consult with the relevant Minister, public authority or approval body (within the meaning of Div 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent;

3. has notified the application in accordance with s 4.55(2)(c)(i) and s 4.55(2)(c)(ii) of the EP&A Act;

4. has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

2. the provisions of s 4.55(3) of the EP&A Act, which require that a consent authority:

1. in determining an application for modification of a consent, must take into consideration such of the matters referred to in s 4.15(1) of the EP&A Act as are of relevance to the development the subject of the application; and

2. take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

9. The Parties have explained how the jurisdictional prerequisites have been satisfied, as follows:

1. in relation to the requirements of s 4.55(2)(a) of the EP&A Act,:

1. the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted because:

1. the development consent that is the subject of the modification application in this appeal was for alterations and additions to, and general refurbishment of, the hotel on the Subject Site;

2. under the modification application, the consent would remain a consent for alterations and additions to, and general refurbishment of, the hotel on the Subject Site;

3. the essence of the development consent as originally granted would remain substantially the same, from both the quantitative and qualitative perspectives;

4. the consent as originally granted has been modified once, but the proposed development to which the modification application in this appeal relates is substantially the same development as the development for which consent was originally granted, and before that consent as originally granted was modified.

2. in relation to the requirements of s 4.55(2)(b) of the EP&A Act, this provision has no effect as there are no conditions of consent that have been imposed as a requirement of a concurrence to the consent or in accordance with any general terms of an approval proposed by a concurrence body.

3. in relation to the requirements of s 4.55(2)(c) of the EP&A Act, the Parties confirmed that the modification application had been appropriately notified in accordance with the provisions of this section.

4. in relation to the requirements of s 4.55(2)(d) of the EP&A Act, the Parties advised that two submissions were received in response to the notification of the proposed modification application. The author of one of those submissions, Ms Marcia Rackman, addressed the Court, and the Parties, during the on-site view prior to the commencement of the conciliation conference on 20 June 2019. Ms Rackman’s submission, and the second submission received, have both been considered by the Parties in reaching their agreement in this appeal.

1. in relation to the provisions of s 4.55(3) of the EP&A Act, the Parties confirmed that:

1. consideration had been given to the matters referred to in s 4.15(1) of the EP&A Act within a Statement of Environmental Effects prepared by Boston Blyth Fleming as part of the modification application, and they were satisfied that the provisions of that section had been satisfied, including the potential impacts of the proposed development, in particular in relation to noise. They advised that these potential noise impacts had been assessed by their respective experts and were found to be acceptable, or had been made the subject of proposed conditions of consent, attached hereto at Annexure ‘A’, and that these were acceptable to the Parties;

2. the reasons given by the Court in granting consent to DA0183/15, that the Applicant seeks to modify, have been taken into consideration.

10. Having considered the advice of the Parties, provided above at [9], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(2) of the EP&A Act have been so satisfied.

11. I am further 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 reasons provided at [9] and [10].

12. 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.

13. 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.

14. The Court orders:

1. The Applicant is granted leave to amend Modification Application No N0183/15 (as modified) by deleting the request to delete Condition B13 as set out in the Statement of Environmental Effects dated 28 May 2018 prepared by Boston Blyth Fleming;

2. The Appeal is upheld;

3. Modification Application No N0183/15 for modification of Development Consent No.N0183/15 (as modified) to amend floor plans at 2 Park Street (Mona Vale Hotel), Mona Vale NSW is approved in accordance with the conditions as set out in Annexure ‘A’ and the Plan of Management dated June 2019 as set out in Annexure ‘C’;

4. As a consequence of Order (3), Development Consent No.N0183/15 (as modified) is now subject to consolidated, modified conditions of development consent set out in Annexure ‘B’.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (16.4 KB, pdf)

Annexure B (98.6 KB, pdf)

Annexure C (1.37 MB, pdf)

Decision last updated: 02 July 2019