BP Australia Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1356

Land and Environment Court

New South Wales

Medium Neutral Citation:	BP Australia Pty Ltd v Northern Beaches Council [2017] NSWLEC 1356
Hearing dates:	Conciliation conference on 7 July 2017
Date of orders:	07 July 2017
Decision date:	07 July 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	BP Australia Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	P Walsh (agent) (Applicant) Z Baker (Respondent) Solicitors: P Walsh, P&A Walsh Consulting Pty Ltd (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/144927
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. 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.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development Consent DA2017/0016 issued by Northern Beaches Council on 12    April 2017 is approved, subject to the following changes to conditions of consent, annexed hereto and marked “A”:

A. Amend the “Proposed Development:”, description in the Notice of Determination, to read as follows:

“Proposed Development: Demolition works and construction of a service station with a neighbourhood shop, associated underground tanks, carparking, landscaping and signage”

B. Amend Condition No.5 “Occupancy”, to read as follows:

“5.OccupancyNothing in this consent shall authorise the use of site/onsite structures/units/tenancies as detailed on the approved plans for any land use of the site beyond the definition of a "service station" including a “neighbourhood shop”.

A service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following:

3. the ancillary sale by retail of spare parts and accessories for motor vehicles,

4. the cleaning of motor vehicles,

5. installation of accessories,

6. inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration),

7. The ancillary retail selling or hiring of general merchandise or services or both.

(Development is defined by the Warringah Local Environment Plan (WLEP) 2011 (as amended) Dictionary)

Any variation to the approved land use and/occupancy of any component beyond the scope of the above definition, including “neighbourhood shop” limitations specified for the site under Schedule 1 Additional Permitted Uses of the Warringah LEP 2011, will require the submission to Council of a new development application.

Reason: To ensure compliance with the terms of this consent. (DACPLB03)”

C. Delete condition No.18 “Provision of Deceleration Lane”, to read as follows:

“18. [Deleted]”

……………………….

Commissioner Dixon

144927.17 Dixon (C) (883 KB, pdf)