Cottage Developers Pty Limited v Northern Beaches Council

[2016] NSWLEC 1399

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cottage Developers Pty Limited v Northern Beaches Council [2016] NSWLEC 1399
Hearing dates:	Conciliation conference on 2 September 2016
Date of orders:	08 September 2016
Decision date:	08 September 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	At [5]
Catchwords:	Appeal under s97AA (a) against deemed refusal of an amendment application [s96(8)]: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Cottage Developers Pty Limited (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: Mr. Sattler, Sattler & Associates Pty Ltd (Applicant) Ms. Munn, King & Wood Mallesons (Respondent)
File Number(s):	2016/233675
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97AA (a) of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal of a modification application under s96(8) of EPA Act. The modification application is seeking to make amendments to the approval DAN0337/13, which is for the construction of 10 self-contained dwellings at 1754 & 1754A Pittwater Rd Bayview.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. 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.

5. The final orders to give effect to the parties’ agreement are:

1. The appeal is upheld;

2. Pursuant to s96(8) development consent is granted to modification of development application number DAN0337/13, at 1754 Pittwater Rd Bayview, subject to the conditions in Annexure A. Amendments as detailed in architectural plans prepared by Macarthur Projects dates 10 June and 30 August 2016 are as follows:

1. Storage area to Unit 6;

2. Increase in window area to bedroom and bathroom apartment ground floor Building A;

3. Minor changes to window dimensions of apartments 3 and 4, skylight to apartment 3, Privacy screen to apartment 2, revised internal layout to ensuite apartment 2, revised detail to courtyard apartment 3, independent WC to apartment 4, minor changes to terrace apartment 4, revised internal layout of bathroom apartment 4;

4. Minor changes to windows and internal layout of apartments 5 and 6. i. 3057675_2

5. Minor change to the slope and material detail of the highlight skillion roof to apartments 9 and 10

…………….

D M Dickson

Commissioner

233675.16 - Annexure A (13.5 KB, pdf)