KBA Elermore Vale Pty Ltd v Newcastle City Council

[2019] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:	KBA Elermore Vale Pty Ltd v Newcastle City Council [2019] NSWLEC 1266
Hearing dates:	Conciliation conference 6 May 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   The appeal is upheld (2)   Development application DA 2017/00436 seeking consent for demolition of the existing dwelling and construction of a multi-dwelling housing development (5 two-storey dwellings) and associated site works on land described as 13 Andrea Close, Wallsend (Lot 16, DP243635) is determined by granting development consent subject to the conditions set out in Annexure ‘A’.    (3)   No order as to costs.
Catchwords:	DEVELOPMENT APPEAL: appeal against refusal – conciliation conference – multi-dwelling housing - agreement between the parties – orders
Legislation Cited:	Environmental Planning and assessment Act 1979 Land and Environment Court Act 1979 Newcastle Environmental Plan 2012
Category:	Principal judgment
Parties:	KBA Elermore Vale Pty Ltd (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: F Berglund (Respondent)   Solicitors: Moray & Agnew Lawyers (Applicant) D Marshall, Newcastle City Council (Respondent)
File Number(s):	2018/289540
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Newcastle City Council (‘the respondent’) of DA 2017/00436 for the demolition of a single storey detached dwelling and the construction of 5 two-storey attached multi dwelling housing units at 13 Andrea Close, Wallsend NSW 2287 being Lot 16 in Deposited Plan 243635.

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 6 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. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 30 May 2019.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the Newcastle Environmental Plan 2012 (NLEP).

2. The provisions of the R2 zone permit residential accommodation development that is consistent with the objectives of the zone, which are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

3. Residential accommodation is defined in the dictionary of the NLEP to include multi-dwelling housing.

6. As the jurisdictional prerequisites to the grant of consent have been addressed 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.

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The appeal is upheld

2. Development application DA 2017/00436 seeking consent for demolition of the existing dwelling and construction of a multi-dwelling housing development (5 two-storey dwellings) and associated site works on land described as 13 Andrea Close, Wallsend (Lot 16, DP243635) is determined by granting development consent subject to the conditions set out in Annexure ‘A’.

3. No order as to costs.

…………………………..

T Horton

Commissioner of the Court

Annexure A (99.8 KB)

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Decision last updated: 14 June 2019