Capolupo v Central Coast Council

[2019] NSWLEC 1231

Land and Environment Court

New South Wales

Medium Neutral Citation:	Capolupo v Central Coast Council [2019] NSWLEC 1231
Hearing dates:	Conciliation conference on 10 April 2019; 2 and 14 May 2019
Date of orders:	30 May 2019
Decision date:	30 May 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	(1)   Leave is granted to the Applicants to rely on the amended architectural, landscaping and engineering plans referred to in condition 1 of Annexure “A”. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a consequence of the amendment to the development application filed in the proceedings in such sum as is agreed or assessed. (3)   The appeal is upheld. (4)   Development consent is granted in respect to DA 160/2018 lodged on 16 February 2018 for the demolition and removal of existing structures and the construction of residential flat building over basement car-parking upon the land known as 15A – 21 Ashton Avenue at The Entrance subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Texts Cited:	Wyong Local Environment Plan 2013
Category:	Principal judgment
Parties:	Lou Capolupo (Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: D Briggs, D G Briggs and Associates (Applicant) M Everingham, Central Coast Council (Respondent)
File Number(s):	2018/270943
Publication restriction:	No

Judgment

1. COMMISSIONER: Lou Capolupo (the Applicant) has appealed the deemed refusal by Central Coast Council (the Respondent) of his development application (DA160/2018) for the demolition of existing structures and construction of a residential flat building over basement car parking, at 15A-21 Ashton Avenue, The Entrance (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. 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 10 April, and 2 and 14 May 2019, and I have presided over the conciliation conference.

4. 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 development application, subject to conditions.

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. The Parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. Other than landowner’s consent, which the Parties confirmed had been provided, the only jurisdictional precondition that must be satisfied before this function can be exercised relates to cl 7.9 of Wyong Local Environment Plan 2013 (WLEP).

8. Clause 7.9 of WLEP requires that the consent authority, or the Court on appeal, must not grant development consent to a development unless it is satisfied that certain essential services are available, or that adequate arrangements have been made to make them available when required.

9. The Parties have confirmed that the Subject Site is adequately serviced by the supply of water, and electricity, and that the provision of services for the disposal and management of sewage, stormwater drainage, are also adequate.

10. Finally they have confirmed that the Subject Site has suitable vehicle access.

11. Consequently, I am satisfied that the provisions of cl 7.9 of WLEP have been addressed by the Applicant.

12. 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.

13. 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.

14. The Court orders:

1. Leave is granted to the Applicants to rely on the amended architectural, landscaping and engineering plans referred to in condition 1 of Annexure “A”.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a consequence of the amendment to the development application filed in the proceedings in such sum as is agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted in respect to DA 160/2018 lodged on 16 February 2018 for the demolition and removal of existing structures and the construction of residential flat building over basement car-parking upon the land known as 15A – 21 Ashton Avenue at The Entrance subject to the conditions at Annexure “A”.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A 

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