Hristovski v City of Canada Bay Council

[2008] NSWLEC 1105

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Hristovski v City of Canada Bay Council [2008] NSWLEC 1105

PARTIES:
APPLICANT
B Hristovski

RESPONDENT
City of Canada Bay Council

FILE NUMBER(S):
11265 of 2007

CATCHWORDS:
Development Consent :-
Modification application
Consent orders

LEGISLATION CITED:

CORAM:
Moore C

DATES OF HEARING:
21 February 2008

EX TEMPORE DATE:
21 February 2008

LEGAL REPRESENTATIVES

APPLICANT
Mr R Green, solicitor
Wilkinson Building & Construction Lawyers

RESPONDENT
Mr S Patterson, solicitor
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

21 February 2008

11265 of 2007                Hristovski v City of Canada Bay Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this appeal is the modification of the conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at type="1">

COMMISSIONER:  This is an appeal against the deemed (and subsequent actual) refusal of a modification application made by the owners of a building to be constructed at 29G Brays Road, Breakfast Point.  Two of the elements which they have sought to modify are to alter the location of water tanks and the method of construction of an external staircase. Both those matters were not contentious at any time during the proceedings. 

However, two other matters have been contentious – these relating to the nature of some balustrading and the positioning of a proposed air conditioning unit.  The council and the applicant have now resolved their differences and come seeking the endorsement of the court to consent orders.

1. I have considered the documents that have been provided and note that there were no objections to the modification application and that that application was notified to those persons who might, had they wished to object, be expected to have done so. 

2. I have read the material, particularly with respect to the noise levels that might result from the operation of the air conditioning unit. After the applicant and the council agreed to a further amendments to the proposed conditions of consent to reflect a recommendation made by the acoustic consultant retained by the applicant, Acoustic Dynamics, to the requirement (that is now be incorporated in the conditions) that the air conditioning unit has to operate at the quietest settings - either of the nominated Daikin unit or an equivalent unit to the same settings as the proposed Daikin unit - and that those settings are not to be interfered with on an ongoing basis.

1. These changes having been agreed to by Mr Green, solicitor for the applicant, I am satisfied that the proposed consent orders can be made.  The result of that is that the orders of the court will be:

The appeal is upheld by consent; and
The application to modify development consent number 334/2004 lodged with the council on 14 September 2007 relating to 29G Brays Road, Breakfast Point will be determined by modification of the original consent as proposed in annexure A to the orders.

1. The exhibits will be returned to the parties with the formal orders. I also note the agreement between the parties that there will be no order sought as to costs.

Tim Moore
Commissioner of the Court

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