Don Hodge Group Pty Ltd v Liverpool City Council

[2020] NSWLEC 1019

Land and Environment Court

New South Wales

Medium Neutral Citation:	Don Hodge Group Pty Ltd v Liverpool City Council [2020] NSWLEC 1019
Hearing dates:	Conciliation conference on 21 November 2019
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders: (1) That leave be granted to the Applicant to rely on the amended architectural and landscape plans and documentation set out in condition 1 of Annexure A. (2) The appeal is upheld. (3) Development consent is granted to development application (DA 400/2019) for the for the demolition of existing demountable building and construction and use of a new pub including internal and external areas, gaming room, children’s play area, loading dock, car parking and associated signage at Lot 611 Deposited Plan 790412 known as 37 Governor Macquarie Drive, Chipping Norton subject to the conditions at Annexure A.
Catchwords:	DEVELOPMENT– Demolition of existing demountable building and construction of new pub – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Liverpool Local Environmental Plan 2008 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Don Hodge Group Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) M Knight (Solicitor) (Respondent)   Solicitors: Hatzis Cusack Lawyers (Applicant) Liverpool City Council (Respondent)
File Number(s):	2019/260308
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of a development application (DA 400/2009) for the demolition of existing demountable building and construction and use of a new pub including internal and external areas, gaming room, children’s play area, loading dock, car parking and associated signage at Lot 611 Deposited Plan 790412 known as 37 Governor Macquarie Drive, Chipping Norton (the site).

2. On 21 November 2019 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties on 24 December 2019 filed an agreement pursuant to s 34(3) giving effect to the agreement in principle. The proposed decision was to grant leave to rely on amended plans and documentation, uphold the appeal and grant development consent to the development application subject to conditions.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

5. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The following jurisdictional prerequisites relevant in this case have been satisfied so this function can be exercised:

1. the site is zoned IN2 Light Industrial under Liverpool Local Environmental Plan 2008 (LLEP 2008) pursuant to which a pub is a permissible use;

2. the proposed development does not contravene any development standards in LLEP 2008;

3. consideration has been given as to whether the subject site is contaminated and fit for the proposed use as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land;

4. material has been provided in a satisfaction of cl 7.7 LLEP 2008 relating to acid sulphate soils;

5. the site is subject to cl 7.8 LLEP 2008 because it is flood affected in part and material has been provided to enable satisfaction of cl 7.8 LLEP 2008;

6. the amendments to the architectural plans are minor for the purpose of s 8.15(3) of the EPA Act.

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.

7. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court orders:

1. That leave be granted to the Applicant to rely on the amended architectural and landscape plans and documentation set out in condition 1 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to development application (DA 400/2019) for the for the demolition of existing demountable building and construction and use of a new pub including internal and external areas, gaming room, children’s play area, loading dock, car parking and associated signage at Lot 611 Deposited Plan 790412 known as 37 Governor Macquarie Drive, Chipping Norton subject to the conditions at Annexure A.

…………………………..

P Clay

Acting Commissioner of the Court

260308.19 Annexure A (494 KB, pdf)

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Decision last updated: 17 January 2020