Dukor 24 Pty Limited v Northern Beaches Council
[2019] NSWLEC 1485
•22 October 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Dukor 24 Pty Limited v Northern Beaches Council [2019] NSWLEC 1485 Hearing dates: Conciliation conference on 3 October 2019; 16 October 2019 Date of orders: 22 October 2019 Decision date: 22 October 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders:
(1) Leave is granted for the Applicant to rely on the amended plans, drawings and materials as referred to in the conditions of consent at Annexure ‘B’ and listed and attached at Annexure ‘A’.
(2) The appeal is upheld.
(3) Development Application No. DA2019/0409 which was lodged with the Respondent on 18 April 2019 and seeks consent for demolition of existing dwelling and the construction of self-care dwellings with associated facilities, internal roads, car parking including basement car parking, site works and landscaping at Lot 1113 Oxford Falls Road, Frenchs Forest NSW as amended with the plans, drawings and material listed and attached at Annexure ‘A’, is approved subject to the conditions annexed to this agreement as Annexure ‘B’.
(4) The Applicant is to pay the Respondent’s costs thrown away pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.Catchwords: DEVELOPMENT APPLICATION – seniors housing development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55—Remediation of Land
Warringah Local Environmental Plan 2000
Warringah Local Environmental Plan 2011Category: Principal judgment Parties: Dukor 24 Pty Limited (Applicant)
Northern Beaches Council (Respondent)Representation: Counsel:
Solicitors:
N Eastman (Applicant)
S Patterson (Solicitor) (Respondent)
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2019/190541 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application DA/2019/0409. The original development application sought consent for demolition works and construction of a senior’s housing development in the form of independent living units on the land known as Lot 1113 Oxford Falls Road, Frenchs Forest.
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On 18 April 2019, the Applicant lodged a development application with Northern Beaches Council. Following the expiration of the ‘deemed refusal period’ a Class 1 application was filed with the Court.
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In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.
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The matter was originally listed for hearing on 3 October 2019. At the request of the parties and by consent the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was also held on 3 October and 16 October 2019. The matter is to be disposed of as an agreement under s 34(3) of the LEC Act and the scheduled hearing was vacated.
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Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act.
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As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:
The subject land is bushfire prone land and is integrated development under s 4.46 of the EPA Act. It was referred to the NSW Rural Fire Services who provided a Bushfire Safety Authority and concurrence conditions which are incorporated in the attached conditions.
The application was lodged with a Contamination Report for the subject site prepared by Douglas Partners (project 86678.01, dated 01 April 2019. Further investigation is required as part of the proposed conditions of consent as recommended in the Douglas Partners Report. I am satisfied that the land will be suitable for the proposed use, and if required the land will be remediated before residential use (cl 7 of State Environmental Planning Policy No 55—Remediation of Land).
In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been lodged (BASIX Certificate 1005874M).
The application was notified in accordance with the relevant development control plan and the submissions have been considered.
The development application has been made with the consent of the land owner.
The site is located within an area identified as ‘Deferred Lands’ under cl 1.3(1A) of the Warringah Local Environmental Plan 2011 (LEP 2011). Consequently LEP 2011 does not apply. The relevant environmental planning instrument is Warringah Local Environmental Plan 2000 (LEP 2000). Under LEP 2000 the site is zoned B2: Oxford Falls Locality.
The development is for the purpose of ‘Housing for older people or people with disabilities’ is a permissible use in the zone, pursuant to Appendix A of LEP 2000. It is also nominated as ‘Category 2’ development;
I have given consideration to the matters listed at cl 12 of LEP 2000 and concur with the agreement of the parties that these matters are addressed.
Clause 40 of LEP 2000 addresses support services for housing for older people or people with disabilities. On the basis of the expert evidence detailed in the joint report filed in the matter on 30 September 2019, I am satisfied that the applicant has demonstrated consistency with the requirements of cl 40 of LEP 2000.
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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.
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In making the orders to give effect to the agreement between the parties, 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.
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The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:
Leave is granted for the Applicant to rely on the amended plans, drawings and materials as referred to in the conditions of consent at Annexure ‘B’ and listed and attached at Annexure ‘A’.
The appeal is upheld.
Development Application No. DA2019/0409 which was lodged with the Respondent on 18 April 2019 and seeks consent for demolition of existing dwelling and the construction of self-care dwellings with associated facilities, internal roads, car parking including basement car parking, site works and landscaping at Lot 1113 Oxford Falls Road, Frenchs Forest NSW as amended with the plans, drawings and material listed and attached at Annexure ‘A’, is approved subject to the conditions annexed to this agreement as Annexure ‘B’.
The Applicant is to pay the Respondent’s costs thrown away pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.
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D M Dickson
Commissioner of the Court
Annexure A Part 1 (3.47 MB)
Annexure A Part 3 (2.13 MB)
Annexure A Part 4 (1.87 MB)
Annexure A Part 5 (1.78 MB)
Annexure A Part 6 (5.01 MB)
Annexure A Part 7 (8.60 MB)
Annexure A Part 8 (9.87 MB)
Annexure A Part 9 (7.49 MB)
Annexure B (547 KB)
(Please note Part 2 of Annexure A cannot be uploaded, of which includes pages 21-41 )
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Decision last updated: 24 October 2019
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