DBCF Pty Ltd v Lane Cove Municipal Council

[2019] NSWLEC 1305

Land and Environment Court

New South Wales

Medium Neutral Citation:	DBCF Pty Ltd v Lane Cove Municipal Council [2019] NSWLEC 1305
Hearing dates:	Conciliation Conference held on 27 June 2019
Date of orders:	02 July 2019
Decision date:	02 July 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See Orders at [7] below
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	DBCF Pty Ltd (Applicant) Lane Cove Municipal Council (Respondent)
Representation:	Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2018/ 338871
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of the Development Consent 217/16 (the consent), as modified, granted by Lane Cove Council (the Council) to modify a development consent for alterations and additions at 6 Mitchell Street, Greenwich (the site). The applicant seeks the deletion of condition 1A of the consent which deleted the pitched tiled roof proposed to replaced the existing roof.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 June 2019. I have 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 deleting condition 1A of the consent and amending the proposal to include a pitched tiled roof with a shallower pitch and lower ridge height of maximum height RL 27.75 when compared to the form of the roof in the modification application.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to determine the application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. 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, because the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.

6. 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.

Orders

7. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans:

Drawing No.	Drawing Title	Revision	Date	Prepared by
106E	Proposed Roof Plan	E	27.06.19	DBCF Pty Limited
107E	Proposed Elevation North	E	27.06.19	DBCF Pty Limited
108E	Proposed Elevation South	E	27.06.19	DBCF Pty Limited
109E	Proposed Elevation East	E	27.06.19	DBCF Pty Limited
110F	Proposed Elevation West	F	27.06.19	DBCF Pty Limited
111E	Proposed Section A‑A	E	27.06.19	DBCF Pty Limited

2. Each party is to pay their own costs of the proceedings.

3. The appeal is upheld.

4. The Approval dated 8 June 2018 to Modify Development Consent No. DA217/2016, originally granted by the Respondent on 27 February 2017 and previously modified on 28 July 2017, is amended as follows:

1. Condition 1 is amended to read as follows:

8. The development is to be strictly in accordance with the following plans:

Drawing No.	Drawing Title	Issue No.	Date	Prepared by
104B	Proposed Floor Plan	B	18.05.17	DBCF Pty Limited
105B	Proposed First Floor Plan	B	18.05.17	DBCF Pty Limited
106E	Proposed Roof Plan	E	27.06.19	DBCF Pty Limited
107E	Proposed Elevation North	E	27.06.19	DBCF Pty Limited
108E	Proposed Elevation South	E	27.06.19	DBCF Pty Limited
109E	Proposed Elevation East	E	27.06.19	DBCF Pty Limited
110F	Proposed Elevation West	F	27.06.19	DBCF Pty Limited
111E	Proposed Section A‑A	E	27.06.19	DBCF Pty Limited
113B	Site Plan	B	18.05.17	DBCF Pty Limited
114B	Environmental Site Management Plan & Waste Management Plan	B	18.05.17	DBCF Pty Limited

1. Condition 1A is deleted.

……………………….

Susan O’Neill

Commissioner of the Court

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Decision last updated: 02 July 2019