Mahabir v Cumberland Council

[2019] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mahabir v Cumberland Council [2019] NSWLEC 1541
Hearing dates:	Conciliation conference on 5 November 2019
Date of orders:	05 November 2019
Decision date:	05 November 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”. (2) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Council’s costs, agreed in the sum of $500.00, within 28 days of the date of these orders. (3) The appeal is upheld. (4) Development Application DA-196/2018 for alterations and additions to an existing dwelling house and the establishment of a neighbourhood shop at 54A Louis Street, Granville, NSW is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to dwelling house – neighbourhood shop – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Seema Mahabir (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: D Tyrell (Solicitor) (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Cumberland Council (Respondent)
File Number(s):	2019/97233
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for alterations and additions to an existing dwelling house and the establishment of a neighbourhood shop at 54A Louis Street, Granville. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 5 November 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application specifies the stock to be displayed within the neighbourhood shop, and allows for landscaped private open space adjacent to the site’s The Avenue frontage.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purposes of a dwelling house and a neighbourhood shop, which are uses that a permissible with consent in the R2 Low Density Residential zone in which the site is located, pursuant to the Parramatta Local Environmental Plan 2011 (“PLEP 2011”).

• The proposed development complies with all of the applicable development standards and the requirement of cl 5.4(7) of the PLEP 2011 for the neighbourhood shop not to exceed 80m² in size.

• 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. The land is residential and is not known to the Council to be contaminated, nor does it adjoin land known to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. Pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the Council’s costs, agreed in the sum of $500.00, within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application DA-196/2018 for alterations and additions to an existing dwelling house and the establishment of a neighbourhood shop at 54A Louis Street, Granville, NSW is approved subject to the conditions set out in Annexure “A”.

…………….

Joanne Gray

Commissioner of the Court

Annexure A (100 KB, pdf)

s34 Plans (1.41 MB, pdf)

**********