Build Genius Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1211

Land and Environment Court

New South Wales

Medium Neutral Citation:	Build Genius Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1211
Hearing dates:	Conciliation conference 10 May 2019
Date of orders:	15 May 2019
Decision date:	15 May 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The Applicant is given leave to amend the development application and rely upon the plans contained at condition 1 to Annexure A. (2)   The applicant is to pay the respondent’s costs pursuant to s 8.15(3) in the agreed amount of $6,700. (3)   The appeal is upheld. (4)   Development application 17/1748 seeking approval for demolition of existing structures and construction of five townhouses at 1 Strickland Street, Heathcote is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPEAL against deemed refusal – conciliation conference – townhouse development –agreement between the parties – orders
Legislation Cited:	Environmental Planning and assessment Act 1979 Land and Environment Court Act 1979 Sutherland Shire Local Environmental Plan 2015
Texts Cited:	Sutherland Shire Development Control Plan 2015
Category:	Principal judgment
Parties:	Build Genius Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/125048
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of DA17/1748 for the demolition of existing development and construction of five townhouses at 1 Strickland Street, Heathcote, being Lot 2 of Deposited Plan 589466.

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 10 May 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 10 May 2019.

4. The parties ask me to approve their decision as set out in the s34 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 s34 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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the Sutherland Shire Local Environmental Plan 2015 (SSLEP). The provisions of the R2 zone permit multi-dwelling housing development that is consistent with the objectives of the zone, which are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To protect and enhance existing vegetation and other natural features and encourage appropriate bushland restoration particularly along ridgelines and in areas of high visual significance.

• To allow the subdivision of land only if the size of the resulting lots retains natural features and allows a sufficient area for development.

• To ensure the single dwelling character, landscaped character, neighbourhood character and streetscapes of the zone are maintained over time and not diminished by the cumulative impact of multi dwelling housing or seniors housing.

2. I am satisfied that amendments contained in Rev G drawings, prepared by the architect Ghazi Al Ali for the applicant, sufficiently address the relevant provisions of cl 6.16 and cl 6.17 of the SSLEP, and the Sutherland Shire Development Control Plan 2015.

3. The landscape plans prepared by Conzept landscape architects and dated 25 March 2019 show an area of landscape on the site that complies with cl 6.14 of the SSLEP.

4. I have read, and am satisfied that the Flooding Compliance Statement, dated 21 March 2019 and prepared by Alpha Engineering addresses the requirements of cl 6.3 of the SSLEP in relation to flood planning.

6. As the jurisdictional prerequisites to the grant of consent have been addressed 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.

7. 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.

8. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

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 given leave to amend the development application and rely upon the plans contained at condition 1 to Annexure A.

2. The applicant is to pay the respondent’s costs pursuant to s 8.15(3) in the agreed amount of $6,700.

3. The appeal is upheld.

4. Development application 17/1748 seeking approval for demolition of existing structures and construction of five townhouses at 1 Strickland Street, Heathcote is approved subject to the conditions in Annexure A.

…………………………..

T Horton

Commissioner of the Court

Annexure A

Plans 

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Decision last updated: 15 May 2019