Hadjiangeli v Sutherland Shire Council

[2018] NSWLEC 1669

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hadjiangeli v Sutherland Shire Council [2018] NSWLEC 1669
Hearing dates:	Conciliation conference on 22 November 2018
Date of orders:	18 December 2018
Decision date:	18 December 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: modification application; 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- Affordable Rental Housing 2009
Category:	Principal judgment
Parties:	Gene Hadjiangeli (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/154859
Publication restriction:	No

Judgment

COMMISSIONER:

1. This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by Mr Gene Hadjiangeli against the deemed refusal by Sutherland Shire Council of Modification Application No. MA 17/0533. The application seeks consent for: relocation of the access to the site; an increase to onsite parking; provision of a roof top communal space; changes to building form and setbacks as well as unit configuration. The development is proposed at 304 Taren Point Road, Caringbah (Lot 2 DP 359066). 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.

2. 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 has been held on 22 November 2018. I presided over the conciliation conference.

3. Following 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 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 4.16(1) of the EPA Act.

4. 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:

1. the proposed use (residential flat building) is permissible in the R4 High Density Residential zone and affordable rental housing is permissible on the site pursuant to State Environmental Planning Policy- Affordable Rental Housing 2009;

2. the parties are agreed, and I find that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (s 4.55((2) of the EPA Act); and

3. the application has been notified in accordance with the relevant development control plan and any submissions have been considered.

5. 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.

6. 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans referred to in condition 1 of Annexure ‘A’;

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 as agreed or assessed;

3. The Appeal is upheld;

4. Modification Application No. MA17/0533 for Development Consent No. 15/1047 for the demolition of existing structures and the erection of a five storey residential flat building containing 17 units and two levels of basement parking at 304 Taren Point Road, Caringbah is approved subject to the conditions in Annexure A;

5. As a consequence of Order 3, Development Consent No. 15/1047 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and

6. The Court notes that the parties consider that the consent as proposed to be modified will be substantially the same as the consent for which consent was originally granted.

……………………….

D M Dickson

Commissioner of the Court

Annexure A

Annexure B

Decision last updated: 24 December 2018