Duke Developments Australia 2 Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1199

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duke Developments Australia 2 Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1199
Hearing dates:	Conciliation conference on 3 April 2019; 17 April 2019; 29 April 2019; 30 April 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of Annexure A; (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW); (3)   The appeal is upheld; (4)   Development application 17/1723 for demolition of existing structures and construction of a five storey residential flat building comprising nine apartments with a two level basement carpark and strata subdivision at Lots 1 and 2 in DP 302432 known as nos 45-47 Parramatta Street, Cronulla, NSW, is determined by the granting of consent subject to the 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
Category:	Principal judgment
Parties:	Duke Developments Australia 2 Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: P Vergotis McCabe Curwood (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/271584
Publication restriction:	No

Judgment

1. COMMISSIONER: Duke Developments Australia 2 Pty Ltd (ACN 619197643) (the Applicant) has appealed the refusal of Sutherland Shire Local Planning Council on behalf of Sutherland Shire Council (the Respondent) of its development application (DA17/1723) for the demolition of existing structures and construction of a five storey residential flat building containing nine apartments above two levels of basement car parking for twenty vehicles, with strata subdivision, at 45-47 Parramatta Street, Cronulla (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which has been held on 3, 17, 29 and 30 April 2019, and I have presided over the conciliation conference.

4. 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 the Court upholding the appeal and granting consent to the development application, subject to conditions.

5. 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 grant consent to the development application.

6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. 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.

8. 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.

9. The Court orders:

1. The Applicant is granted leave to amend the development application to rely upon the amended plans referred to in condition 1 of Annexure A;

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans as agreed or assessed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW);

3. The appeal is upheld;

4. Development Application 17/1723 for demolition of existing structures and construction of a five storey residential flat building comprising nine apartments with a two level basement carpark and strata subdivision at Lots 1 and 2 in DP 302432 known as Nos. 45 - 47 Parramatta Street, Cronulla NSW, is determined by the granting of consent subject to the conditions in Annexure A.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A

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Decision last updated: 03 May 2019