Morello v Northern Beaches Council

[2019] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morello v Northern Beaches Council [2019] NSWLEC 1227
Hearing dates:	Conciliation conference on 15 May 2019
Date of orders:	24 May 2019
Decision date:	24 May 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans referred to in Condition A of Annexure A; (2) The Appeal is upheld; (3) Modification Application MOD 2017/0316 for modification of Development consent DA/85/2016 for erection of balustrading to roof including an external access hatch /skylight and modifications to external materials and colours at 26 Beatty Street Balgowlah Heights is approved subject to conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Domenico Morello (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: F Berglund (Respondent) M Staunton (Applicant)   Solicitors: Sattler & Associates Pty Ltd (Applicant) Northern Beaches Council (Respondent)
File Number(s):	2018/288738
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its modification application MOD2017/0316. The existing development on the Site was constructed under Development Consent No. DA0085/2016 (the DA the subject of this Modification Application) for demolition of existing structures, construction of three (3) storey dwelling house with a triple garage, new driveway, front fence, retaining wall, removal of ten (10) trees, landscaping, swimming pool with spa and deck.

2. The Modification Application proposes the approval and regularisation of works already carried out to the dwelling house, and the use of the roof as a terrace. The proposal was amended during the conciliation process and through the agreed conditions of consent.

3. The development is proposed at 26 Beatty Street, Balgowlah Heights (Lot 2 in DP 217340).

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 15 May 2019. Following the conciliation 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.55(1A) of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. I am satisfied that the proposed modification is of minimal environmental impact,

2. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted,

3. The application has been notified in accordance with the relevant development control plan and the submissions have been considered.

7. 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.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to amend the modification application to rely upon the amended architectural plans referred to in Condition A of Annexure A;

2. The Appeal is upheld;

3. Modification Application MOD 2017/0316 for modification of Development consent DA/85/2016 for erection of balustrading to roof including an external access hatch /skylight and modifications to external materials and colours at 26 Beatty Street Balgowlah Heights is approved subject to conditions in Annexure A.

……………………….

D M Dickson

Commissioner of the Court

Annexure A 

Decision last updated: 24 May 2019