Colliers International Project Management Pty Ltd v The Council of the City of Sydney

[2019] NSWLEC 1384

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Colliers International Project Management Pty Ltd v The Council of the City of Sydney [2019] NSWLEC 1384
Hearing dates:	Conciliation conference on 18 July 2019; 13 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The applicant is granted leave to rely on the amended Plan of Management dated June 2019 as referred to in conditions 6, 7, 11 and 13 and annexed with the conditions of consent at Annexure “A”. (2) The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Development Application no. D/2018/401 for deletion of operational conditions for a theatre/gallery space at 37-49 and 51-63 O’Connor Street, Chippendale is approved subject to the conditions contained 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
Category:	Principal judgment
Parties:	Colliers International Project Management Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: A Whealy, Mills Oakley (Applicant) M Flick, City of Sydney Council (Respondent)
File Number(s):	2018/365239
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the Council of the City of Sydney’s refusal of Development Application No. D/2018/401, which sought deletion of certain operational conditions for a theatre/gallery space at 37-49 and 51-63 O’Connor Street, Chippendale. The proposed changes would affect the operational consent for the theatre/gallery space referenced as Development Application D/2015/188/C.

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 18 July and 13 August 2019, and at which I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties indicated that there were no particular jurisdictional pre-requisites with regard to this decision; that is, there were no matters requiring satisfaction on the part of the consent authority, before a determination could be made.

6. In the conference the parties indicated the history to the proposal including the changes made from the original application to arrive at the agreement. The Respondent provided a statement of reasons for its coming to the agreement (Annexure B to the agreement) which I have noted. This statement indicates the Respondent’s view that the provision of an amended Plan of Management (Revision 6, dated June 2019) allows the now proposed changes to operational conditions as currently nominated.

7. I have queried whether due attention was given to public submissions, and I am satisfied that this has occurred, noting the amended Plan of Management is intended to provide responses to the submissions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. As the parties’ decision is a decision that the Court could have so made, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position.

9. The Court orders:

1. The applicant is granted leave to rely on the amended Plan of Management dated June 2019 as referred to in conditions 6, 7, 11 and 13 and annexed with the conditions of consent at Annexure “A”.

2. The parties agree that the amendments are minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Development Application no. D/2018/401 for deletion of operational conditions for a theatre/gallery space at 37-49 and 51-63 O’Connor Street, Chippendale is approved subject to the conditions contained at Annexure “A”.

……………………….

P Walsh

Commissioner of the Court

Annexure A (641 KB)

Plan of Management (1.39 MB, pdf)

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Amendments

22 August 2019 - Plan of Management attached to Judgment