BR Building Service P/L v Strathfield Council

[2020] NSWLEC 1292

Land and Environment Court

New South Wales

Medium Neutral Citation:

BR Building Service P/L v Strathfield Council [2020] NSWLEC 1292

Hearing dates:

Conciliation Conference on 29 June 2020

Date of orders:

13 July 2020

Decision date:

13 July 2020

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.

(2) The appeal is upheld.

(3) Development application DA2019/028 seeking the demolition of existing buildings and construction of a two-storey dwelling with basement level parking is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Strathfield Local Environmental Plan 2012

Category:

Principal judgment

Parties:

BR Building Service P/L (Applicant)
Strathfield Council (Respondent)

Representation:

Counsel:
Dr S Berveling (Applicant)
B Bradley (Solicitor) (Applicant)
G Shapiro (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2019/337689

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application DA2019/028 was lodged with Strathfield Council (the Council) on 1 March 2019 seeking consent for demolition of existing buildings and construction of a two (2) storey dwelling with basement level and front boundary fence at 27 Wakeford Road, Strathfield. The Council refused consent on 6 September 2019 and the applicant is appealing that determination pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. In this matter, at the conciliation conference held on 29 June 2020, and in response to amended plans filed by the applicant on that day, 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 Court Act required me to “dispose of the proceedings in accordance with the decision”.

3. 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.

4. 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 Court Act). I have formed this state of satisfaction for the following reasons:

1. The proposed development is permissible with consent in the R2 Low Density Residential zone of Strathfield Local Environmental Plan 2012 (LEP).

2. The Development standards for floor space ratio and building height are satisfied.

3. The Council has considered a geotechnical report prepared for the applicant and advises the Court that subject to compliance with proposed condition 42 the terms of LEP clause 6.2 - Earthworks are satisfied.

4. The amended plans reduce the bulk and scale of the building and address the privacy concerns raised in the Council’s original contentions.

5. The applicant has provided additional details in relation to existing and proposed finished levels and agrees to the imposition of conditions which will limit the floor to ceiling height of the basement to a maximum of 2.3 metres, thereby ensuring the basement area will not be used for any habitable purposes and still providing necessary clearances for vehicles to enter that basement area.

6. The amended landscape plans address the contention regarding compliance with the Council’s development control plan in relation to landscaped area and deep soil areas.

7. The deletion of upper level balconies and the reduction in size of the ground floor patio addresses previous privacy concerns.

5. 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 Court Act to dispose of the proceedings in accordance with that decision.

6. 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.

7. The Court orders that:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 2 in Annexure A.

2. The appeal is upheld.

3. Development application DA2019/028 seeking the demolition of existing buildings and construction of a two-storey dwelling with basement level parking is approved subject to the conditions in Annexure A.

………………………

Sue Morris

Acting Commissioner of the Court

Annexure A (268481, pdf)

Plans (2006394, pdf)

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Decision last updated: 14 July 2020