Ghostin Group Pty Ltd v Sutherland Shire Council
[2019] NSWLEC 1446
•20 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Ghostin Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1446 Hearing dates: Mediation on 19 August 2019; 5 September 2019; Conciliation conference on 16 September 2019 Date of orders: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that:
(1) Leave is granted to the Applicant to rely on the amended plans listed in Condition 1 at Annexure ‘A’.
(2) Development Consent DA 16/0722 dated 22 July 2016 for the demolition of existing structures, construction of a dual occupancy and Torrens titles subdivision at Lot 46 DP 14986, 17 Crystal Street Sylvania (as previously modified by MA17/0218) is further modified in accordance with the amended plans listed in Condition 1 of Annexure ‘A’ and subject to the conditions in Annexure ‘A’.Catchwords: MODIFICATION APPLICATION – modification application – dual occupancy – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court 1979
Sutherland Shire Local Environmental Plan 2015Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Ghostin Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)Representation: Counsel:
Solicitors:
S Nash (Applicant)
J Amy (Solicitor) (Respondent)
Blackstone Waterhouse (Applicant)
Sutherland Shire Council (Respondent)
File Number(s): 2018/390850 Publication restriction: No
Judgment
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COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Sutherland Shire Council (the Respondent) of Modification Application No. MA18/0106 for internal and external modifications to the first floor of an approved two-storey attached dual occupancy at Lot 46 in DP 14986, otherwise known at 17 Crystal Street, Sylvania.
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The appeal was initially listed before me for mediation on 19 August 2019. Proceedings commenced on site before parties returned to Council chambers, at which time the parties reached in-principle agreement as to the scope of modifications to be undertaken. I adjourned proceedings to allow the preparation of amended plans to document the agreed modifications.
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The mediation reconvened on 5 September 2019, at which time the parties confirmed they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The matter was adjourned, and re-allocated to me by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference which was held on 16 September 2019. I presided over the conciliation conference.
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This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 September 2019.
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The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the modifications to the development subject to agreed conditions annexed to the s 34 agreement.
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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.
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The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments, such as the Sutherland Shire Local Environmental Plan 2015 and the Sutherland Shire Development Control Plan 2015, have been satisfied in order to allow the Court to make the agreed orders at [12].
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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). In making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent. With regard to s 4.55(1A) of the EPA Act, I have formed this state of satisfaction for the following reasons:
I am satisfied that the proposed modification is of minimal environmental impact;
the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted.
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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.
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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, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The Court orders that:
Leave is granted to the Applicant to rely on the amended plans listed in Condition 1 at Annexure ‘A’.
Development Consent DA 16/0722 dated 22 July 2016 for the demolition of existing structures, construction of a dual occupancy and Torrens titles subdivision at Lot 46 DP 14986, 17 Crystal Street Sylvania (as previously modified by MA17/0218) is further modified in accordance with the amended plans listed in Condition 1 of Annexure ‘A’ and subject to the conditions in Annexure ‘A’.
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T Horton
Commissioner of the Court
Annexure A (101 KB, pdf)
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Decision last updated: 20 September 2019
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