Clarkson v Waverley Council

[2020] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clarkson v Waverley Council [2020] NSWLEC 1266

Hearing dates:

Conciliation conferences on 27 February 2020, 27 March 2020, 21 April 2020, 20 May 2020 and 15 June 2020

Date of orders:

24 June 2020

Decision date:

24 June 2020

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Courts 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 Annexure ‘A’.

(2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $12,448 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Development Consent is granted to Development application DA-342/2018 seeking the demolition of a pair of semi-detached dwellings and construction of two new semi-detached dwellings and common garage at 5 and 5a St Thomas Street, Bronte, subject to those conditions of consent in 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

Waverley Local Environment Plan 2012

Category:

Principal judgment

Parties:

Michael Clarkson (First Applicant)
Katherine Clarkson (Second Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicants)
S Patterson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/262953

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 refusal of Development Application No. DA-342/2018 for the demolition of a pair of semi-detached dwellings and construction of two new semi-detached dwellings, including a shared pool and common garage at 5 and 5a St Thomas Street, Bronte otherwise known as Lot 1 and Lot 2 in DP 582903 (the site).

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 27 February 2020. 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 development consent to the development application subject to conditions.

4. The agreement required the amendment of drawings and other documents, for which purpose I granted an adjournment. A signed agreement prepared in accordance with s 34 (10) of the LEC Act was filed with the Court on 17 June 2020.

5. 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.

6. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [11], and evidenced in amendments to the plans that resolve a non-compliance in relation to the height of buildings.

7. I note also that the potential view loss arising from the proposed development has been addressed to the satisfaction of the Respondent as a result of the amendments agreed to by the parties during conciliation discussions and as incorporated in the amended plans.

8. The site is located within the R2 Low Density Residential zone as identified in the Waverley Local Environmental Plan 2012 (WLEP). The provisions of the R2 zone permits semi-detached dwelling development with consent that is consistent with the objectives of the zone which are as follows:

Objectives of zone

•  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.

9. 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. 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.

10. 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.

11. 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 granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Annexure ‘A’.

2. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away in the agreed amount of $12,448 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Consent is granted to Development application DA-342/2018 seeking the demolition of a pair of semi-detached dwellings and construction of two new semi-detached dwellings and common garage at 5 and 5a St Thomas Street, Bronte, subject to those conditions of consent in Annexure ‘A’.

………………………

T Horton

Commissioner of the Court

Annexure A (323637, pdf)

Plans (5776782, pdf)

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Decision last updated: 25 June 2020