Cross v Willoughby City Council

[2020] NSWLEC 1345

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cross v Willoughby City Council [2020] NSWLEC 1345

Hearing dates:

17 July 2020

Date of orders:

06 August 2020

Decision date:

06 August 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend its class 1 application filed with the Court on 17 January 2020 by:

(a)   Deleting the words under the section "Orders Sought"; and

(b)   Inserting the following under the section "Orders Sought":

(i)   Modification of consent conditions 8,9, 32 and 35 to DA-2019/101.

(2)   The appeal is upheld.

(3)   Conditions 8, 9, 32 and 35 to Development Consent DA-2019/101 for alterations and additions to an existing dwelling be modified in accordance with the conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – amend conditions of consent – stormwater management – flood risk – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Willoughby Local Environmental Plan 2012

Texts Cited:

Willoughby Development Control Plan 2006

Category:

Principal judgment

Parties:

Joel Cross (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
J Cross (Self Represented Applicant)
P Vergotis (Solicitor) (Respondent)

Solicitors:
McCabe Curwood Pty Ltd (Respondent)

File Number(s):

2020/16928

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against conditions 8, 9, 32 and 35 of consent granted for Development Application (DA) 2019/101, which was approved by Willoughby City Council (hereafter the Council) for alterations and additions to an existing dwelling, including a first floor addition, on Lot 1 508 DP 330685, also known as 34 Stafford Road, Artarmon (hereafter the site).

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

3. The Court agreed to a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 July 2020. I presided over the conciliation conference by MS Teams, as agreed by the parties. There were no objectors whom made submission at this conciliation.

4. During the conciliation, the applicant sought to amend the Class 1 Application and modify the orders sought. The parties agreed that the amended orders enlivened power to the consent authority to make the agreement. The amended Class 1 application was filed and granted leave by the Court on 17 July 2020, with no objection of the respondent.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. This decision is to uphold the amended appeal and grant consent to modify conditions of consent for DA 2019/101, as agreed by the parties and that the DA now relies upon.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.15(1) of the EPA Act to grant consent to DA 2019/101, with amended conditions. The proposed changes to conditions were described to the Court, as shown in the amended conditions attached to the s34 agreement, and upon which the Court relies to consent to this agreement.

7. The parties identified the jurisdictional prerequisites of relevance in these proceedings, pursuant to consideration under s 4.15(1) of the EPA Act, as: Willoughby Local Environmental Plan 2012 (WLEP); and Willoughby Development Control Plan 2006 (WDCP).

8. The parties agreed that the amended conditions requiring a flood risk management report satisfies the requirements of the WLEP, specifically addressing cl 6.3. The parties also agreed that the relevant requirements of the WLEP are satisfied, by the supporting documents, to modify the relevant conditions of the approved consent, as sought under this appeal.

9. The parties agree that the requirements of the WDCP, specifically those in contention that relate to Part C5.2 for stormwater management, are satisfied by the amended conditions. Based on the supporting documents assessed under this appeal, the contentions that relate to the controls of the WDCP are resolved to the satisfaction of the parties. The parties agree that the DA was notified pursuant to WDCP requirement, and no submissions in objection were received.

10. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the modification of conditions sought under this appeal to DA 2019/101, satisfies the requirements of s 4.15(1) of the EPA Act.

11. 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.

12. The Court orders:

1. The Applicant is granted leave to amend its class 1 application filed with the Court on 17 January 2020 by:

1. Deleting the words under the section "Orders Sought"; and

2. Inserting the following under the section "Orders Sought":

1. Modification of consent conditions 8,9, 32 and 35 to DA-2019/101.

2. The appeal is upheld.

3. Conditions 8, 9, 32 and 35 to Development Consent DA-2019/101 for alterations and additions to an existing dwelling be modified in accordance with the conditions contained in Annexure A.

…………………………

S Bish

Commissioner of the Court

Annexure A (101542, pdf)

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Decision last updated: 06 August 2020