Iur Australia Holdings Pty Ltd v Council of the Municipality of Woollahra

[2020] NSWLEC 1630

Land and Environment Court

New South Wales

Medium Neutral Citation:

IUR Australia Holdings Pty Ltd v Council of the Municipality of Woollahra [2020] NSWLEC 1630

Hearing dates:

Conciliation conference on 27 November 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) Leave is granted to amend the applicant’s Class 1 application, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979.

(2) Leave is granted to amend Modification Application, DA162/2016/4 for conditions described in Annexure A.

(3) Modification of Modification Application DA162/2016/4 that relates to an existing residential development, on Lot 11 Section 8 DP7658, also known as 7 Banksia Ave, Bellevue Hill is approved, with conditions in Annexure B.

Catchwords:

MODIFICATION APPLICATION – conditions relating to outside areas of an existing residential development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Woollahra Local Environmental Plan 2014

Texts Cited:

Woollahra Development Control Plan 2015

Category:

Principal judgment

Parties:

IUR Australia Holdings Pty Ltd (Applicant)
Council of the Municipality of Woollahra (Respondent)

Representation:

Counsel:
A Patterson (Solicitor) (Applicant)
P Rigg (Solicitor) (Respondent)

Solicitors:
Darby Jones Lawyers (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2020/69998

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against conditions relating to a determination of modification application, DA162/2016/4 (the MA) approved by the Council of the Municipality of Woollahra (hereafter the Council), which in appeal and as amended, seeks to modify the conditions of consent that relate to an existing residential development, on Lot 11 Section 8 DP7658, also known as 7 Banksia Ave, Bellevue Hill (hereafter the site).

2. This Class 1 appeal, as amended is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The conditions

3. The Court arranged a conciliation conference between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 27 November 2020 by Microsoft Teams, and at which, the agreement was filed. I presided over the conciliation conference as duty commissioner.

4. Prior to this conciliation conference, the parties agreed to amend the DA’s conditions to be relied upon in the granting of consent to the DA under appeal, which also include the addition of two new conditions. The amended MA under appeal now relates to conditions C.1 (c), (d), (e), and (g), and E.26, as identified in Annexure A of the orders. Condition C.1(f), which was the subject of the original appeal was agreed by the parties to remain unchanged in the consent.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court. This decision is to uphold the appeal and grant consent to modify DA162/2016/4, with conditions of consent in Annexure B.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act to grant consent to modify DA162/2016/4 as agreed, with conditions in Annexure B. The proposed amendments to conditions is limited to those described in Annexure A, and upon which the Court relies to consent to this agreement.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(1A) of the EPA Act, as the: Woollahra Local Environmental Plan 2014 (WLEP); and Woollahra Development Control Plan 2015 (WDCP). The parties agree that the amended conditions of consent address the merits of the proposal.

8. The parties agree that the relevant requirements of the WLEP remain satisfied and unchanged by the amended conditions to the MA.

9. Based on the evidence of the parties as assessed under this appeal, the contentions and issues raised in objection that relate to the controls of the WDCP are resolved to the satisfaction of the parties. In particular, the parties agree that the conditions as proposed to be modified protect the public and private view corridors. The requirements of s 4.55(1A)(a) are satisfied, as the parties agree the proposed changes to the development will have minimal environmental impact.

10. The respondent confirms that notification of the application under appeal was not required, pursuant to the requirements of the WDCP, which satisfies ss 4.55(1A)(c) and (d) of the EPA Act.

11. The parties agree that the proposed modification is substantially the same as previously approved. The parties agree that the requirements of s 4.55(1A)(b) of the EPA Act are satisfied, in addition to the requirements of ss 4.55 (3) and (4).

12. I am satisfied that based on the evidence provided and advice of the parties, there are no jurisdictional impediments to this agreement and that the modification to amend conditions described in Annexure A, as sought under this amended appeal to DA162/2016/4, satisfies the requirements of s 4.55(1A) of the EPA Act.

13. 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.

14. The Court orders:

1. Leave is granted to amend the applicant’s Class 1 application, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979.

2. Leave is granted to amend Modification Application, DA162/2016/4 for conditions described in Annexure A.

3. Modification of Modification Application DA162/2016/4 that relates to an existing residential development, on Lot 11 Section 8 DP7658, also known as 7 Banksia Ave, Bellevue Hill is approved, with conditions in Annexure B.

…………………………

S Bish

Commissioner of the Court

Annexure A (128856, pdf)

Annexure B (591466, pdf)

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