East Bay Property Pty Ltd v Bayside Council

[2019] NSWLEC 1437

Land and Environment Court

New South Wales

Medium Neutral Citation:	East Bay Property Pty Ltd v Bayside Council [2019] NSWLEC 1437
Hearing dates:	Conciliation conference on 12 September 2019
Date of orders:	12 September 2019
Decision date:	13 September 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Modification Application no. DA-2007/344/B to modify the development consent to DA-2007/344 granted by the Respondent on 29 March 2007 is determined by approving the modification as set out at Annexure “A”. (3) As a consequence of (2), Development Consent DA-2007/344 is now subject to the consolidated, modified conditions of development consent as set out in Annexure "B".
Catchwords:	APPEAL – modification 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:	East Bay Property Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Ren Zhou Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/27156
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal against the refusal of an application to modify a development consent for a dwelling house at 33 West Botany Street, Arncliffe. The modification application seeks to modify the consent to incorporate a range of works that have already been carried out. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [8] below, were made as a result of the agreement between the parties that was reached at a conciliation conference. The orders were made at the conciliation conference with the parties present, at which time I did not give reasons for the making of those orders. This judgment sets out those reasons.

2. The Court was required to arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was held on 12 September 2019. I presided over the conciliation conference.

3. At the conciliation conference, 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 was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. Those conditions include carrying out specified alterations to the dwelling house.

4. As the presiding Commissioner, I was satisfied that the decision is one that the Court could make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that it involves alterations to the dwelling house that do not qualitatively or quantitatively change the dwelling in any significant manner.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, 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.

7. As such, the orders made on 12 September 2019 were as follows:

1. The appeal is upheld.

2. Modification Application no. DA-2007/344/B to modify the development consent to DA-2007/344 granted by the Respondent on 29 March 2007 is determined by approving the modification as set out at Annexure “A”.

3. As a consequence of (2), Development Consent DA-2007/344 is now subject to the consolidated, modified conditions of development consent as set out in Annexure "B".

…………………………

J Gray

Commissioner of the Court

Annexure A (19.5 KB, pdf)

Annexure B (107 KB, pdf)

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Decision last updated: 16 September 2019