King v Woollahra Municipal Council

[2019] NSWLEC 1347

Land and Environment Court

New South Wales

Medium Neutral Citation:	King v Woollahra Municipal Council [2019] NSWLEC 1347
Hearing dates:	Conciliation conference on 19 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans referred to in condition A.3 of the Conditions at Annexure A to these orders. (2) No costs are payable under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the amendments are minor. (3)   The Appeal is upheld. (4)   Development Application No. 478/2016 for remediation of the site and the construction of two x three storey attached residential dwellings with landscaping and off street parking at No.7 and No. 9 Belmore Place Paddington 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 State Environmental Planning Policy No 55 – Remediation of Land Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	Donna King (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: M Cottom, Pikes & Verekers Lawyers (Applicant) P Rigg, Peter R Rigg (Respondent)
File Number(s):	2018/336718
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Woollahra Municipal Council's refusal of development application 478/2016 (DA).

2. The DA is for site remediation and the construction of two x three-storey attached residential dwellings and associated parking at Nos 7 and 9 Belmore Place, Paddington (site).

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 19 July 2019. I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings at the conciliation conference. In particular, I note the following:

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. A Stage 2 Detailed Site Investigation has been undertaken which has found evidence of contamination and made recommendations in regard to remediation. Relevant conditions of consent are added to satisfy the requirements of cl 7(1) in regard to land remediation prior to use.

• The site is located within the Paddington Heritage Conservation Area. I am informed on the participation of suitable experts in the development of the final plans which are now the subject of the agreement and am satisfied that sufficient consideration of the effects of the proposed development under cl 5.10(4) of Woollahra Local Environmental Plan 2014 in regard to heritage has been given.

• I have also been provided with an explanation on how consideration has been given to public submissions in coming to the agreement and am satisfied in that regard.

7. 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.

8. 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. I note that I have had no direct regard to the merits of the application in coming to this position.

9. The Court orders:

1. The Applicant is granted leave to rely on the amended plans referred to in condition A.3 of the Conditions at Annexure A to these orders.

2. No costs are payable under s 8.15(3) of the Environmental Planning and Assessment Act 1979 as the amendments are minor.

3. The Appeal is upheld.

4. Development Application No. 478/2016 for remediation of the site and the construction of two x three storey attached residential dwellings with landscaping and off street parking at No.7 and No. 9 Belmore Place Paddington is approved subject to the conditions of consent at Annexure A.

…………………………

P Walsh

Commissioner of the Court

Annexure A (614 KB, pdf)

Plans (2.71 MB, pdf)

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Decision last updated: 24 July 2019