Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney

[2019] NSWLEC 1059

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney [2019] NSWLEC 1059
Hearing dates:	14 February 2019
Date of orders:	14 February 2019
Decision date:	14 February 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See [6] below
Catchwords:	MODIFICATION APPLICATION: conciliation conference; agreement between the parties; security deposit for the making good of any damage caused to any property of the consent authority.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Karimbla Construction Services (NSW) Pty Limited (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: S Nash (Applicant)   Solicitors: Meriton Group (Applicant) A Simpson, Council of the City of Sydney (Respondent)
File Number(s):	2018/30384
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination of Modification Application No. D/2015/1355/A to modify Development Consent D/2015/1355/K to amend the conditions of consent, including Conditions 91 (Public Domain Plan) and 91A (Public Domain Works Deposit) for the development at 25-29 Rothschild Avenue and 5-13 Rosebery Avenue, Rosebery, by the Council of the City of Sydney (the Council).

2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 January 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties.

3. The amended conditions concern a security deposit for the making good of any damage caused to the property of the Council and are imposed on the development consent pursuant to s 4.17(6) of the EPA Act. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Conclusion

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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.

Orders

6. The orders of the Court are:

1. The appeal is upheld.

2. The modification application D/2016/1355/A to modify development consent D/2016/1355/K is determined by approval subject to the conditions contained in Annexure ‘A’.

3. As a consequence of order (2), Development Consent No. D/2016/1355/A is now subject to the consolidated, modified conditions of development consent set out in Annexure “B”.

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Susan O’Neill

Commissioner of the Court

Annexure A (250 KB, pdf)

Annexure B (796 KB, pdf)

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