MN Sukkar Pty Ltd v Cumberland Council

[2020] NSWLEC 1050

Land and Environment Court

New South Wales

Medium Neutral Citation:	MN Sukkar Pty Ltd v Cumberland Council [2020] NSWLEC 1050
Hearing dates:	Conciliation conference on 31 January 2020
Date of orders:	07 February 2020
Decision date:	07 February 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The Applicant is granted leave to rely upon the amended plans set out in Annexure ‘A’. (2)   The appeal is upheld. (3)   Development Application number DA-93/2019 for demolition of existing structures and construction of six (6) townhouses over basement car parking on Lot Y in Deposited Plan 403688 otherwise known as 116 Kingsland Road, Regents Park, NSW is approved subject to the conditions in Annexure ‘B’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	MN Sukkar Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: J Ede (Solicitor) (Respondent)   Solicitors: G&S Law Group (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/283912
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Cumberland Council of a development application for the demolition of existing structures and the construction of 6 two-storey townhouses over basement car parking at 116 Kingsland Road, Regents Park. 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 following 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 31 January 2020. I presided over the conciliation conference.

3. Following 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 changes the levels of dwelling 6 and the dimensions of dwelling 3, in order to respond to issues raised by the Council in its Statement of Facts and Contentions.

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 purpose of multi-dwelling housing, which is a permissible use in the R3 Medium Density Residential zone in which the site is located, pursuant to the Auburn Local Environmental Plan 2010 (“ALEP 2010”)

• There are no development standards breached by the proposed development.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• 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. As the site has a history of use for the purposes of a residential dwelling house, it is unlikely 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 am 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 rely upon the amended plans set out in Annexure ‘A’.

2. The appeal is upheld.

3. Development Application number DA-93/2019 for demolition of existing structures and construction of six (6) townhouses over basement car parking on Lot Y in Deposited Plan 403688 otherwise known as 116 Kingsland Road, Regents Park, NSW is approved subject to the conditions in Annexure ‘B’.

………………………..

J Gray

Commissioner of the Court

Annexure A (P) (5.87 MB, pdf)

Annexure B (C) (213 KB, pdf)

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Decision last updated: 11 February 2020