Ma Property Developments Pty Ltd v City of Parramatta Council

[2024] NSWLEC 1109

Land and Environment Court

New South Wales

Medium Neutral Citation:

MA Property Developments Pty Ltd v City of Parramatta Council [2024] NSWLEC 1109

Hearing dates:

Conciliation conference on 8 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) The modification to DA/582/2017/F is approved in the terms set out in Annexure A to this Agreement;

(3) The development consent DA/582/2017/F as modified by the Court is set out in Annexure B to this Agreement.

Catchwords:

MODIFICATION APPLICATION: brothel – deletion of condition – conciliation conference – agreement between parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.17, 4.55, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

MA Property Developments Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
A Jucha (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Coleman Greig Lawyers (Applicant)
City of Parramatta Council (Respondent)

File Number(s):

2023/465945

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) following consent granted by City of Parramatta Council (the Respondent) on 24 November 2023, for the continuing use of the premises for the purposes of a brothel at 5/5 Clyde Street, Rydalmere NSW, legally described as Lot 5 SP 55127.

2. The modification application, made pursuant to s 4.55(1A) of the EPA Act, seeks to modify the consent granted on 24 November 2023 by the deletion of Condition 3 that applies an expiry of the consent.

3. 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 8 March 2024, and at which I presided.

4. However, prior to the conciliation conference the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties.

5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the development application subject to those agreed conditions of consent, in accordance with s 4.17 of the EPA Act.

6. I note here that a signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 8 March 2024.

7. 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.

8. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. The parties identified the jurisdictional prerequisites of relevance in these proceedings that are satisfied for the reasons that follow:

1. Firstly, I am satisfied that the proposed modification is of minimal environmental impact. The modification seeks removal of an expiry of the consent at a specified time in the future.

2. Secondly, with respect to s 4.55(1A) of the EPA Act, I have formed the necessary state of satisfaction that the development, to which the consent as modified relates, is substantially the same as the development for which the consent was originally granted in 2017.

3. Thirdly, I record here that the modification application has been notified, during which time no public submissions were received.

4. Fourthly, I am satisfied as the presiding Commissioner, for the reasons that follow, that the decision is one that the Court can make in the proper exercise of its functions, being the test applied by s 34(3) of the LEC Act.

Conclusion

10. 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.

11. 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.

Orders

12. The Court orders that:

1. The appeal is upheld;

2. The modification to DA/582/2017/F is approved in the terms set out in Annexure A to this Agreement;

3. The development consent DA/582/2017/F as modified by the Court is set out in Annexure B to this Agreement.

T Horton

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 13 March 2024