Kulakowski v Blacktown City Council

[2019] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kulakowski v Blacktown City Council [2019] NSWLEC 1079
Hearing dates:	Conciliation conference on 8 February 2018
Date of orders:	12 February 2019
Decision date:	12 February 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [10] below
Catchwords:	DEVELOPMENT 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:	Konstanzia Kulakowski (Applicant) Blacktown City Council (Respondent)
Representation:	Solicitors: A Knox, Pikes and Verekers Lawyers (Applicant) D Loether, Bartier Perry (Respondent)
File Number(s):	2018/169440
Publication restriction:	No

Judgment

1. COMMISSIONER: The proceedings, brought under Class 1 of the Court’s jurisdiction, comprise an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of an application to modify development consent DA 12-707 under s 4.55 of the EPA Act. The consent for DA 12-707 granted approval for a double storey motel development comprising 30 motel units and car parking. The modification proposes basement car parking and modified access arrangements.

2. The site is at 2 Great Western Highway Prospect, legally described as Lot 25, DP 739107.

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 8 February 2019. I presided over the conciliation conference.

4. At the conciliation conference, the parties evidenced 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 consent to the modification 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification of a development application. The parties advise there are no jurisdictional impediments to this occurring and I note in particular their advice in regard to the following:

1. In terms of the status of the consent: DA 12-707 included a deferred commencement condition with agreement that the consent became operative on 12 November 2014. The parties agreed that the lapsing date of the consent would be 12 November 2019, but in any event that physical works in the manner aligned with the consent particulars commenced on 3 October 2018. The parties agree that the consent has not lapsed.

2. In terms of the question of whether the development once modified would be “substantially the same” as the approved development: I have reviewed the relevant particulars, note the scope of the changes, and am satisfied in this regard both in qualitative and quantitative terms.

3. The development is integrated development under section 4.46 of the Environmental Planning & Assessment Act requiring the concurrence of Roads and Maritime Services (RMS). Specifically, pursuant to section 138 of the Roads Act 1993, concurrence was required from RMS as the subject site adjoins a classified road.

6. Amendments to the plans occurred during the course of the conciliation and I also note that the applicant has agreed to pay the respondent’s costs thrown away as a result of the amendments in the sum of $3750.

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.

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

9. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

10. The Court orders:

1. The Applicant is granted leave to rely upon the following amended material, copies of which are behind Annexure ‘A’:

Revised Section 4.55 Application to Modify the Development Consent DA12-707, prepared by Winning Traffic Solutions, dated November 2018.

2. The appeal is upheld.

3. Modification Application number 17-00465, for the modification of Development Consent DA-12-707, relating to changes to the access and parking arrangements of the approved 2 storey motel on Lot 25 DP739107, otherwise known as 2 Great Western Highway, Prospect, is approved. A summary of the approved modifications to conditions of consent is set out in Annexure ‘B’.

4. Development Consent DA-12-707, as now amended by Modification Application number 17-00465, is subject to the consolidated and updated conditions as set out in Annexure ‘C’.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (8.25 MB, pdf)

Annexure B (181 KB, pdf)

Annexure C (360 KB, pdf)

Decision last updated: 26 February 2019