MBC Property Australia Nominees Pty Ltd v Sutherland Shire Council

[2018] NSWLEC 133

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	MBC Property Australia Nominees Pty Ltd v Sutherland Shire Council [2018] NSWLEC 133
Hearing dates:	22 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	See orders at [7].
Catchwords:	DEVELOPMENT CONSENT: exercise of discretion to make consent orders in Class 1 appeal against deemed refusal of a development application – consent orders made.
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.15(3)
Category:	Principal judgment
Parties:	MBC Property Australia Nominees Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Mr C McFadzean (Applicant) Ms J Amy (Respondent)   Solicitors: Swaab Attorneys (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2017/351673
Publication restriction:	N/A

Judgment

Consent Orders Made to Resolve Class 1 Proceedings

1. This is a Class 1 appeal against the deemed refusal of DA 17/0418, for the demolition of existing structures and the construction of 13 three storey townhouses with ground level car parking and associated landscaping on Lots 5, 6 and 7 in DP 36423, known as 147-151 President Avenue Miranda ("the land").

2. The matter has been resolved by consent orders drafted and filed by the parties in Court.

Evidence in Support of Consent Orders

3. The applicant, MBC Property Australia Nominees Pty Ltd, tendered in Court:

1. a statement of agreed facts, dated 20 August 2018;

2. email correspondence between Ms Janelle Amy and Mr Colin McFadzean, between 21 and 22 August 2018, resolving the remaining issues in dispute and suggesting draft consent orders;

3. a statutory compliance report prepared by DPC for the land, dated 17 August 2018;

4. a solar access analysis report prepared by SLR Consulting Australia Pty Ltd for the land, dated August 2018;

5. Basix Certificate No. 798965M_03 prepared by Gradwell Consulting, dated 20 August 2018;

6. a joint expert report on stormwater filed on 20 August 2018;

7. a joint expert report on access filed on 15 August 2018;

8. a joint expert report on town planning filed on 15 August 2018;

9. a supplementary joint expert town planning report filed on 21 August 2018;

10. the development application for the land dated 21 November 2017; and

11. attached plans in support of the development application.

4. The respondent, Sutherland Shire Council, tendered the following evidence in support of the consent orders:

1. an amended statement of facts and contentions, dated 7 August 2018; and

2. the development consent conditions, with an attached tree protection plan, dated 6 August 2018, and an attached landscape plan, dated 16 August 2018.

5. No objectors were present.

Conclusion and Orders

6. Having considered the evidence relied upon by the parties, I am satisfied that not only does the Court have the power to make the consent orders sought, moreover, that it is an appropriate exercise of my discretion to make those orders.

7. Accordingly, the Court orders that:

1. the applicant is granted leave to rely upon the following amended plans and additional reports:

Drawing No.	Title	Author	Date
DA-00 Rev D	Cover Sheet	MD+A Architects	17 August 2018
DA-01 Rev E	Site Analysis Plan
DA-02 Rev E	Site Plan
DA-03 Rev E	GFA Calculations
DA-04 Rev E	Basement Plan
DA-05 Rev E	Ground Floor Plan
DA-06 Rev E	First Floor Plan
DA-07 Rev E	Roof Plan
DA-08 Rev E	Elevations
DA-09 Rev E	Elevations
DA-10 Rev E	Sections 1
DA-11 Rev E	Sections 2
DA-12 Rev E	Shadow Diagrams (June 21st)
DA-13 Rev E	Shadow Diagrams (September 21st)
DA-14 Rev E	Shadow Diagrams (December 21st)
DA-15 Rev E	Shadow Diagrams (March 21st)
DA-17 Rev E	Landscape Calculation Plan
DA-18 Rev E	Waste Management Plan
DA-19 Rev E	Construction Management Plan
DA-20 Rev E	Max Height Plane
DA-21 Rev E	Perspective
DA-22 Rev E	Perspective
DA-23 Rev E	Perspectives
DA-24	Pre and Post Adaption Plans
L/01 Rev F	Cover Sheet	A Total Concept	16 August 2018
L/02 Rev H	Landscape Plan – Ground Floor
L/03 Rev F	Plant Schedule & Typical Details
1692 – S1/6 Rev B	Stormwater Drainage / Sediment Control Details	John Romanous & Associates	16 August 2018
1692 – S2/6 Rev B	Stormwater Drainage / Sediment Control Details
1692 – S3/6 Rev B	Stormwater Drainage / Sediment Control Details
1692 – S4/6 Rev B	Stormwater Drainage / Sediment Control Details
1692 – S5/6 Rev B	Stormwater Drainage / Sediment Control Details
1692 – S6/6 Rev B	Stormwater Drainage / Sediment Control Details
1 A	Stormfilter Detention Tank 4 cartridge storm filter system	Stormwater 360	3 November 2016

Title	Author	Date
BASIX certificate No. 798965M_03	Gradwell Consulting	20 August 2017
Solar Access Analysis –v4.0	SLR	17 August 2018
Statutory Compliance Report Rev 1.2	DPC	17 August 2018

2. the appeal is upheld;

3. the applicant is to pay the respondent's costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $12,000, to be paid within 28 days; and

4. development application No DA17/0148 for the demolition of existing structures and construction of thirteen (13) townhouses and associated parking at Lots 5, 6 and 7 DP 36423 being No 147-151 President Avenue, Miranda, is approved subject to the conditions attached in Annexure A.

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Annexure A

MBC Property Australia Nominees Pty Ltd v Sutherland Shire Council Agreed Conditions of Consent 22.8.18 (58.3 KB, docx)

Amendments

30 August 2018 - Annexure link added