Connoisseur Investments Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1476

Land and Environment Court

New South Wales

Medium Neutral Citation:	Connoisseur Investments Pty Ltd v Northern Beaches Council [2019] NSWLEC 1476
Hearing dates:	Conciliation conference on 25-26 September 2019
Date of orders:	08 October 2019
Decision date:	08 October 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) Leave is granted to the Applicant to amend the development application and rely on the documents listed in condition 1a) of Annexure A. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed. (3) The appeal is upheld. (4) Development application DA2018/1121 for the demolition of the existing dwelling and erection of a 2 storey boarding house containing 13 boarding rooms and 1 manager’s room at 5 Fitzell Place, Brookvale is approved subject to conditions 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 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land Warringah Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Connoisseur Investments Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) G Hartley (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Hartley Solicitors (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/263029
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the respondent's deemed refusal of development application No. DA2018/1121 (‘DA’) which sought consent to demolish the existing buildings, excavate for a basement car park and construct a three (3) storey boarding house containing 23 boarding rooms and 1 manager’s room on the land at No. 5 Fitzell Place, Brookvale (‘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 25 and 26 September 2019. I presided over the conciliation conference.

3. After the conciliation conference, the parties filed an 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 approving the development, as amended, and subject to conditions. The key change between the plans as originally submitted and the plans that are the subject of the s 34 agreement are the reduction in height and number of rooms, and increased setbacks. An amended landscape plan as well as an amended BASIX certificate were also provided.

4. 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 advised that there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. In terms of jurisdiction the parties advise that:

1. In relation to Warringah Local Environmental Plan 2012 (“WLEP”);

1. The proposed development is consistent with the definition of “Boarding House” contained in the Dictionary of WLEP which is a permissible use in the R3 Medium Density Residential zone;

2. The development meets the objectives of the R3 zone.

2. The development is required to comply with the provisions of State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”), and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The site has been used for residential purposes and does not require any remediation.

3. The development is required to comply with the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. An updated BASIX Certificate has been provided.

5. I also note that that consideration has been given to lay submissions. This is indicated by the scaling back of the development, including, in regard to parking demand.

6. Mindful of Council’s advice and my own interpretation of the statutory setting, 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 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.

7. The Court orders:

1. Leave is granted to the Applicant to amend the development application and rely on the documents listed in condition 1a) of Annexure A.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment to the development application in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed.

3. The appeal is upheld.

4. Development application DA2018/1121 for the demolition of the existing dwelling and erection of a 2 storey boarding house containing 13 boarding rooms and 1 manager’s room at 5 Fitzell Place, Brookvale is approved subject to conditions in Annexure A.

……………………….

P Walsh

Commissioner of the Court

Annexure A (118 KB, pdf)

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Decision last updated: 09 October 2019