Karimbla Constructions Services (NSW) Pty Ltd v The Council of the City of Sydney

[2020] NSWLEC 1180

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karimbla Constructions Services (NSW) Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 1180
Hearing dates:	Conciliation conference on 20 February 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders that: (1) The Applicant is granted leave to amend the Modification Application to rely on the plans at Annexure B and the Car Park and Loading Dock Management Plan dated 14 March 2020, Revision A, prepared by ARUP Pty Ltd at Annexure C. (2) The appeal is upheld. (3) Modification Application No. D/2018/1276/A to modify Development Consent No. D/2018/1276 to provide a total of 35 car parking spaces on the site, with 30 parking spaces permitted for the hotel and serviced apartment use, 2 parking spaces permitted for the retail use, 2 parking spaces for service vehicles and one loading dock space for a small rigid vehicle, in respect of the property known as 234 Sussex Street, Sydney and being all that land comprised in Lot 21 DP 1250748, is approved, subject to the conditions of consent at Annexure A.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Karimbla Constructions Services (NSW) Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: S Nash (Applicant) A Singh (Solicitor) (Respondent)   Solicitors: Meriton Group (Applicant) Sydney City Council (Respondent)
File Number(s):	2020/31990
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) against the refusal of Modification Application No. D/2018/1276/A to modify Development Consent No. D/2018/1276, (the proposal) at 234 Sussex Street, Sydney (Lot 21 DP 1250748) (the site) by the Council of the City of Sydney (the Council).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 February 2020. 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. This decision involved amending the Modification Application to provide a total of 35 car parking spaces on the site, with 30 parking spaces permitted for the hotel and serviced apartment use, 2 parking spaces permitted for the retail use, 2 parking spaces for service vehicles and one loading dock space for a small rigid vehicle. The amended proposal is reflected in plans at Annexure B and the Car Park and Loading Dock Management Plan dated 14 March 2020, Revision A, prepared by ARUP Pty Ltd, at Annexure C. The parties agreed that the amendments made to the Modification Application are minor within the meaning of s 8.15(3) of the EPA Act.

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.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act.

6. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, because the modification is confined to the use and management of the existing basement.

7. 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.

8. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans at Annexure B and the Car Park and Loading Dock Management Plan dated 14 March 2020, Revision A, prepared by ARUP Pty Ltd at Annexure C.

2. The appeal is upheld.

3. Modification Application No. D/2018/1276/A to modify Development Consent No. D/2018/1276 to provide a total of 35 car parking spaces on the site, with 30 parking spaces permitted for the hotel and serviced apartment use, 2 parking spaces permitted for the retail use, 2 parking spaces for service vehicles and one loading dock space for a small rigid vehicle, in respect of the property known as 234 Sussex Street, Sydney and being all that land comprised in Lot 21 DP 1250748, is approved, subject to the conditions of consent at Annexure A.

………………………..

Susan O’Neill

Commissioner of the Court

Annexure A (64.7 KB)

Annexure B (1.36 MB)

Annexure C (10.7 MB)

**********

Decision last updated: 24 April 2020