Mintilakis v Sutherland Shire Council

[2024] NSWLEC 1358

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mintilakis v Sutherland Shire Council [2024] NSWLEC 1358

Hearing dates:

Conciliation conference on 13 June 2024

Date of orders:

27 June 2024

Decision date:

27 June 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The appeal is upheld.
(2) Development Application DA22/0759, as amended, for the alterations and additions to the existing dwelling, comprising a new upper floor and other associated works at 409 Willarong Road, Caringbah South, is determined by the grant of development consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation 2001, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards), ss 2.10, 2.11, 4.6
Sutherland Shire Local Environmental Plan 2015, cll 4.3, 6.1, 6.2, 6.4, 6.5, 6.9, 6.14, 6.16, 6.17.

Cases Cited:

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Michael Mintilakis (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Solicitors:
P Vergotis (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Piper Alderman (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/335990

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Michael Mintilakis (the Applicant) against the refusal of Development Application No DA22/0759, by Sutherland Shire Council (the Respondent). The Development Application, lodged on 28 July 2022, seeks for the alterations and additions to the existing dwelling, comprising a new upper floor and other associated works at 409 Willarong Road, Caringbah South, legally described as Lot 5 in DP 701869.

2. The Court arranged a conciliation conference between the parties under s 34AA(2) of the Land and Environment Court Act 1979 (the LEC Act). This was held on 13 June 2024.

3. At the conciliation conference, an agreement was reached as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the Development Application subject to conditions. 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 to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

5. As the presiding…