La Vie Developments Pty Ltd v Wollongong City Council

[2020] NSWLEC 1255

Land and Environment Court

New South Wales

Medium Neutral Citation:	La Vie Developments Pty Ltd v Wollongong City Council [2020] NSWLEC 1255
Hearing dates:	Conciliation conferences on 29 May and 9 June 2020
Date of orders:	16 June 2020
Decision date:	16 June 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1)   The appeal is upheld. (2)   Modification Application No. DA-2017/1711/D, to modify Development Consent No. D/2017/1711 (“Development Consent”), relating to Lot 400 in Deposited Plan 1252763, is approved such that the Development Consent is modified as set out at Annexure A. (3)   The Court notes that as a consequence of Order 2, Development Consent No. D/2017/1711 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
Catchwords:	MODIFICATION – subdivision and seniors housing – variation in development contributions – 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:	La Vie Developments Pty Ltd (Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: M Jaku (Solicitor) (Applicant) T Robertson SC (Respondent)   Solicitors: Jaku Legal (Applicant) Wollongong City Council (Respondent)
File Number(s):	2019/299678
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by the Respondent of an application to modify development consent (DA-2017/1711/D) for Subdivision and Seniors housing at Lot 400 Deposited Plan 1252763 known as 8 Goolagong Street, Avondale (the site).

2. The modification sought is to vary pursuant to s 7.13(3) of the EP&A Act the Development Contributions imposed pursuant to s 7.11 of the EP&A Act.

3. On 29 May 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

4. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to modify the development consent in the manner described below.

5. On 9 June 2020 the parties lodged an agreement pursuant to s 34 of the LEC Act.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 4.55(1A) and s 7.13(3) of the EP&A Act to grant the application to modify the development consent.

8. 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 because:

1. the Court has power on appeal pursuant to s 7.13(3) of the EP&A Act to impose a contribution otherwise than in accordance with a relevant contributions plan;

2. the modification involves no environmental impact thereby in satisfaction of s 4.55(1A) of the EP&A Act.

9. 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.

10. The parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EP&A Act.

11. The Court orders that:

1. The appeal is upheld.

2. Modification Application No. DA-2017/1711/D, to modify Development Consent No. D/2017/1711 (“Development Consent”), relating to Lot 400 in Deposited Plan 1252763, is approved such that the Development Consent is modified as set out at Annexure A.

3. The Court notes that as a consequence of Order 2, Development Consent No. D/2017/1711 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (177542, pdf)

Annexure B (978209, pdf)

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