Golden Beaches Pty Ltd v Northern Beaches Council

[2020] NSWLEC 1339

Land and Environment Court

New South Wales

Medium Neutral Citation:

Golden Beaches Pty Ltd v Northern Beaches Council [2020] NSWLEC 1339

Hearing dates:

Conciliation conference held on 3, 23 and 28 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Court orders that:

(1) The Applicant is given leave to amend Development Application DA2018/1069 and to rely on the amended plans and documents referred to in the Table at condition 1(a) of the conditions of consent at Annexure A.

(2) The Applicant is to pay the Respondent’s costs “thrown away” by the amendment of Development Application DA2018/1069 pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is upheld.

(4) Development Application DA2018/1069 for the demolition of an existing two (2) storey brick residence and existing secondary dwelling and construction of a new residential flat building containing three (3) apartments and basement car park is approved, subject to the conditions of consent at 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

Warringah Local Environmental Plan 2011

Category:

Principal judgment

Parties:

Golden Beaches Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Riley Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/350521

Publication restriction:

No

Judgment

1. COMMISSIONER: Development Application DA2018/1069 was lodged with Northern Beaches Council on 22 June 2018 seeking consent to demolish all existing structures and selected trees on site and construct a residential flat building containing 4 apartments with basement car parking, ancillary site works including excavation, landscaping and stormwater disposal at 5 Dalley St, Queenscliff. The council refused the original application and also reviewed that determination and amended plans, again refusing consent. The applicant is appealing that decision pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. In this matter at a conciliation conference held on 3, 23 and 28 July 2020 and in response to amended plans filed by the applicant, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to those parties. The amended plans that form the basis of this agreement have reduced the height of the building by one storey and increased setbacks from side boundaries as well as other alterations to internal layouts of the units. Only three apartments are proposed, one on each storey of the building.

3. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3)(a) of the Court Act. As a consequence, s 34(3)(a) of the Court Act required me to dispose of the proceedings in accordance with the decision.

4. The decision agreed upon is to uphold the appeal and to grant development consent subject conditions of consent pursuant to s 4.16 of the EPA Act.

5. The Court Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

6. 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 Court Act. I have formed this state of satisfaction for the following reasons:

1. The proposed development is permissible in the R3 Medium Density Residential Zone under the provisions of Warringah Local Environmental Plan 2011 (LEP).

2. The proposal complies with all relevant development standards under the LEP.

3. The council advises that the amended plans satisfactorily address the original contentions contained in its statement of facts and contentions filed on 29 January 2020 and the objectives of its planning controls.

4. The council advises that, having regard to submissions received in response to its notification of the amended plans, there have not been any issues raised that warrant refusal of the application subject to the agreed conditions of consent that reflect those issues.

7. 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 Court Act to dispose of the proceedings in accordance with the parties’ decision.

8. 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.

9. The Court orders that:

1. The Applicant is given leave to amend Development Application DA2018/1069 and to rely on the amended plans and documents referred to in the Table at condition 1(a) of the conditions of consent at Annexure A.

2. The Applicant is to pay the Respondent’s costs “thrown away” by the amendment of Development Application DA2018/1069 pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development Application DA2018/1069 for the demolition of an existing two (2) storey brick residence and existing secondary dwelling and construction of a new residential flat building containing three (3) apartments and basement car park is approved, subject to the conditions of consent at Annexure A.

……………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (324949, pdf)

Plans (15280431, pdf)

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Decision last updated: 31 July 2020