Jaimee Pty Ltd v Council of the City of Sydney

[2011] NSWLEC 7

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jaimee Pty Ltd v Council of the City of Sydney [2011] NSWLEC 7

Hearing dates:

3 February 2011

Decision date:

03 February 2011

Before:

Craig J

Decision:

1. Vacate hearing fixed for 9 February 2011.

2. That the appeal be upheld

3. Otherwise orders in accordance with the document entitled "Consent Orders" signed by the solicitors to the parties dated 3 February 2011, initialled by me and placed with the papers.

Catchwords:

Development Consent:- modification of consent - quantum of s 94 contribution - question referred by parties for neutral evaluation - acceptance of determination - consent orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245

Category:

Principal judgment

Parties:

Jaimee Pty Ltd (Applicant)
Council of the City of Sydney (Respondent)

Representation:

A Gough (Solicitor) (Applicant)
N L Stenekes (Solicitor) (Respondent)
Storey and Gough Lawyers (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

10679 of 2010

ex tempore Judgment

1. HIS HONOUR : The applicant Jaimee Pty Ltd has appealed to the Court pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979, seeking modification of a development consent granted by the Council on 20 May 2010. On 18 June 2010 Jaimee Pty Ltd made application to the Council to modify the development consent that had been granted, that application being made pursuant to s 96(1A).

1. The application then made sought the modification of three conditions of consent. Two of those conditions related to monetary contributions required to be made in accordance with the conditions imposed by the Council. A third condition related to the requirement for a construction certificate relevant to the demolition of work that the consent contemplated would be undertaken. The applicant's appeal to this Court followed the refusal of the Council to accede to the monetary contribution contentions.

1. Subsequent to the lodgement of its appeal, the applicant sought to amend both its modification application to the Council and its Class 1 application to this Court so as to reduce the number of conditions that were to be modified. That application for amendment was considered and determined by me in a judgment delivered on 17 December 2010 ( Jaimee Pty Ltd v Council of the City of Sydney [2010] NSWLEC 245). For all practical purposes, the consequence of my judgment at that time was that the only issue remaining for determination in this appeal was the quantum of s 94 contributions payable in accordance with Condition 8 imposed at the time in which the Council granted consent in May 2010.

1. At the time at which I determined the applicant's application for amendment of its application I indicated the costs order that I considered appropriate, but reserved to the applicant the right to argue that question upon giving notice to the Registrar of its wish so to do. It has exercised that right and today the matter was listed for determination of the costs of the applicant's motion to amend. When the matter came before me the solicitors for the respective parties informed me of two matters of present relevance.

1. First, they indicated that they had resolved their dispute as to costs that should be payable following upon the determination that I made on 17 December. Secondly, they informed me that their respective clients had agreed upon the manner in which these proceedings should be finally resolved.

1. It seems that following my determination in December last, the parties had sensibly and commendably agreed that the one outstanding issue as to the quantum of s 94 contribution should be referred for neutral determination by Mr Adrian Hack, a land economist and planner. Both parties forwarded documents and made submissions, in a fashion, to Mr Hack to assist his determination as to the appropriate and reasonable contribution, having regard to the terms of the contributions plan identified in Condition 8 of the Council's conditions of development consent. Mr Hack has provided his response to the parties request. Both parties have indicated their acceptance, as being appropriate, of the contribution that Mr Hack has determined.

1. The contribution determined is for a total sum of $113,252.58. It is by reason of that determination and therefore the determination of the one outstanding issue in the appeal, that the parties have now requested that the appeal be formally determined. They have provided me with the form of orders they seek to have made by consent.

1. The statement of facts and contentions that had been filed on behalf of the Council in October last, indicated that the development application had been notified for a period of 21 days from 5 January 2010 to 27 January 2010. Some 81 owners or occupiers of premises adjoining the subject site were notified of the application. The statement of facts and contentions also records that during or following the notification period no submissions had been received by the Council indicating the interest of any other person or entity in the development application.

1. I am also informed that the Council's notification policy did not require the modification application to be publicly notified and as a consequence no such notification took place. I am also advised by the Council's solicitor that there has been no submission made by a third party in relation to the modification application which would require the Court to convene a further hearing in order to consider the interests of any other person.

1. Having regard to the manner in which this matter proceeded and also to the nature of the single issue that remains to be determined, I am satisfied that it is appropriate now to determine the applicant's s 96(6) appeal. I am also satisfied that it is appropriate to determine the appeal by making orders in terms sought in the consent orders which the parties have tendered to me.

1. Accordingly, the orders that I make are as follows:

1.   Vacate hearing fixed for 9 February 2011.

2.   That the appeal be upheld.

3.   Otherwise orders in accordance with the document entitled "Consent Orders" signed by the solicitors for the parties, dated 3 February 2011, initialled by me and placed with the papers.

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Decision last updated: 09 February 2011