Karimbla Constructions Services (NSW) Pty Ltd v Northern Beaches Council

[2019] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karimbla Constructions Services (NSW) Pty Ltd v Northern Beaches Council [2019] NSWLEC 1236
Hearing dates:	Conciliation conference on 29 May 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The applicant is granted leave to amend the application by relying on the amended plans listed in condition A1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) Development Application No. N0398/17, as amended pursuant to Order (1), for the construction of a road and earthworks at 2 Macpherson Street, Warriewood (Lot 25, Section C, DP 5464) is approved, subject to the conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Karimbla Constructions Services (NSW) Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: C McEwen SC with S Nash (Applicant)   Solicitors: Meriton Group (Applicant) D Yates, King & Wood Mallesons (Respondent)
File Number(s):	2018/244034
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. N0398/17 for the construction of a road and earthworks (the proposal) at 2 Macpherson Street, Warriewood (the site) by Northern Beaches Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 May 2019. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

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 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to cll 6.1(3), 7.1(3), 7.2 (3), 7.3(3) and 7.6(3) and (4) of the Pittwater Local Environmental Plan 2014 (LEP 2014).

6. The site is zoned R3 Medium Density Residential pursuant to cl 1.7 of LEP 2014 (Land Zoning Map - Sheet LZN_012). The site is identified as Buffer Area 1m of the Warriewood Valley Release Area pursuant to LEP 2014. Buffer Area 1m has an allowable dwelling density of not more than 22 dwellings per hectare, at cl 6.1(3) of LEP 2014. This application does not include subdivision or the erection of dwellings.

7. I accept the Council’s submission that the requirements of cl 7.1 ‘Acid sulphate soils’ and cl 7.3 ‘Flood planning’ have been considered and are reflected in the reports that form part of the application.

8. I accept the agreed submission of the parties that the requirements of cl 7.2 ‘Earthworks’ at subcl (3) of LEP 2014 have been considered and are reflected in the reports that form part of the application.

9. The portion of the site that adjoins Narrabeen Creek is shown on the Biodiversity Map of LEP 2014 (Biodiversity Map -Sheet BIO_012) and is subject to the provisions of cl 7.6 ‘Biodiversity’ of LEP 2014. I accept the agreed submission of the parties that the requirements of subcll (3) and (4) have been considered and that the proposal is designed, sited and will be managed to avoid any significant adverse environmental impacts.

Orders

10. The orders of the Court are:

1. The applicant is granted leave to amend the application by relying on the amended plans listed in condition A1 of the conditions of consent at Annexure A.

2. The appeal is upheld.

3. Development Application No. N0398/17, as amended pursuant to Order (1), for the construction of a road and earthworks at 2 Macpherson Street, Warriewood (Lot 25, Section C, DP 5464) is approved, subject to the conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 31 May 2019