Freedom Development Group Pty Ltd v Sutherland Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1504

Hearing dates:

Conciliation Conference on 18 October 2019

Date of orders:

25 October 2019

Decision date:

25 October 2019

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development consent 18/0531, granted on 3 April 2019 for two boarding houses containing a total of 65 rooms and basement parking, is modified to amend the monetary contribution requirement in Part 2 condition 4 of the conditions of consent to $682,215, subject to the consolidated conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145

Texts Cited:

Sutherland Shire Council Section 7.11 Development Contribution Plan 2016

Category:

Principal judgment

Parties:

Freedom Development Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

  Solicitors:
Conomos Legal (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2019/139024

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a modification application made to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 18/0531 granted on 3 April 2019 (Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145) for the demolition of existing structures and the construction of two boarding houses comprising 65 rooms and a shared basement that straddles the shared boundary (the approved development) at 391 and 393 Kingsway, Caringbah (the site).

2. The proposal is to amend Condition 4 in Part 2 of the conditions of consent to reduce the monetary contribution required pursuant to s 7.11 of the EPA Act and the Sutherland Shire Council Section 7.11 Development Contribution Plan 2016 (s 7.11 Plan) from a total monetary contribution of $1,260,000 to $682,215 to be paid to Sutherland Shire Council towards the cost of regional and public domain works, with such payment to be made prior to the issue of a construction certificate.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the applicant and the respondent, Sutherland Shire Council (the Council), which has been held on 18 October 2019 2019. I 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.

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 4.55(8) of the EPA Act to modify the development…