Munayer v Sutherland Shire Council

[2017] NSWLEC 1077

Land and Environment Court

New South Wales

Medium Neutral Citation:	Munayer v Sutherland Shire Council [2017] NSWLEC 1077
Hearing dates:	Conciliation conference on 25 January 2017
Date of orders:	21 February 2017
Decision date:	21 February 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	MODIFICATION; modification of existing approval for a dwelling house; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Catherine Munayer (Applicant) Sutherland Shire Council (Respondent)
Representation:	Mr A Hudson, Wilshire Webb Staunton Beattie (Applicant) Ms J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2016/312185
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal to modify DA06/1375 for the construction of a dwelling house at 64 Grays Point Road, Grays Point.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the applicant to rely on the amended plans listed in Condition 1 of Annexure ‘A’.

2. The appeal is upheld.

3. Modification application no. MA 164/0139 is approved to modify development consent no DA06/1375 (the development consent) as follows:

1. Delete the first part of condition 1 and replace with the following:

“1.      Approved Plans and Documents

The development shall be implemented substantially in accordance with the details and specifications set out in the following table and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Plan number	Reference	Prepared by	Date
1601/DA01/Issue E	Site Plan	Catherine Munayer Architecture	16/1/2017
1601/DA02/Issue D	Roof Plan	Catherine Munayer Architecture	16/1/2017
1601/DA03/Issue D	Level 4 Floor Plan	Catherine Munayer Architecture	16/1/2017
1601/DA04/Issue D	Level 3 Floor Plan	Catherine Munayer Architecture	16/1/2017
1601/DA05/Issue D	Level 2 Floor Plan	Catherine Munayer Architecture	16/1/2017
1601/DA06/Issue D	Level 1 Floor Plan	Catherine Munayer Architecture	16/1/2017
1601/DA07/Issue D	Subfloor Plan	Catherine Munayer Architecture	16/1/2017
1601/DA08/Issue D	North Elevation	Catherine Munayer Architecture	16/1/2017
1601/DA09/Issue D	West Elevation	Catherine Munayer Architecture	16/1/2017
1601/DA10/Issue D	South Elevation	Catherine Munayer Architecture	16/1/2017
1601/DA11/Issue D	East Elevation	Catherine Munayer Architecture	16/1/2017
1601/DA12/Issue D	Section x-x	Catherine Munayer Architecture	16/1/2017
181564S-02	BASIX CERTIFICATE	Damian O’Toole Town Planning P/L	18/4/2016

2. Amend condition 10 to delete sub-paragraphs (d) and (e) and insert new sub-paragraphs (f), (g) and (h) as follows:

f) Swimming Pool exemption – A section 22 exemption under the swimming pools act 1992 is required to be obtained to allow the trough to be used as part of the child resistant barrier. Should this exemption not be obtained then a pool fence is required at ground level around the trough of the pool.

g) The louvre screens within 900mm of the pool trough and supporting walls shall be designed and constructed to be non-climbable and compliant with the Swimming Pools Act 1992.

h) The bins and gas bottle area shown on DA03 to be redesigned to ensure there is no encroachment over the boundary and onto the road reserve.

3. Delete condition 49.

4. Delete condition 52.

5. Amend condition 50A to read as follows:

50A.   Removal of Tree T25

One (1) Angophora costata tree (Identified on Plans as T25) of substantial size or significance is approved for removal as part of this consent. In order to satisfy the replanting requirement, four (4) replacement trees (Angophora costata) are required to offset this loss.

At least one(1) Angophora costata tree shall be replanted within the rear yard area on the property and be shown within the approved landscape plan. The trees selected must be planted within the rear of the subject property and not within 3m of a building or proposed building. Replacement trees must have a minimum container size of 5L and must be maintained and protected until they are covered by Council’s Controls for Preservation of Trees and Bushland Vegetation (DRAFT SSCDCP2015 Chapter 38). Any replacement trees found faulty, damaged, dying or dead must be replaced with the same species in the same container size within one (1) month with all costs to be borne by the owner.

For the remaining three replacement trees Council and the Applicant may enter into a Deed of Agreement for replacement planting of some or all of the trees off-site. Under this Deed of Agreement Council may agree to undertake the replanting of replacement trees on Council's own land for a fee of $100 per replacement tree. Offsite planting will be undertaken as part of Council’s Green Street Program. ‘Deed of Agreement ‘Forms can be downloaded from Council’s website atwww.sutherlandshire.nsw.gov.au/forms(conf url). A completed form and payment must be submitted to Council prior to the release of the Construction Certificate.

Note: If you have difficulty sourcing suitable indigenous plants from any suppliers, locally sourced plant stock is available from:

Sutherland Shire Council Nursery

345 The Boulevarde, Gymea

Ph: 02 9524 5672 Opening hours - Monday to Friday 7.00am-3.00pm (excluding public holidays).

6. Delete condition 51 and replace with:

51. Tree Retention and Protection

a)   The following tree/s shall be retained and protected:

Tree Species

(botanical and common name)

Location on site

Angophora costata

T.1 on the approved plans

Angophora costata

T.26 on the approved plans

The above trees are to be protected by the following measures:

Protective fencing or other measures shall be installed around the trunk of each tree referenced above in accordance with the directions of the Site Supervising Arborist. These measures shall be installed prior to the commencement of any works subject to this consent and remain in place until all works are completed. Signage shall be erected on the fence with the following words clearly displayed “TREE PROTECTION ZONE, DO NOT ENTER”.

Any approved works within this tree protection zone shall be under the direction of, and to the satisfaction of, a suitably qualified and experienced Arborist.

(b)   Trees 31, 32 and 33 to be retained but need not be protected during construction.

7. Delete condition 52.

8. Insert new condition 67 as follows:

67   Maintenance of Undercroft area on Level 1

Level 1 of the dwelling shall be maintained as a part undercroft area by restricting and limiting bounding construction to that as detailed on Drawing DA06/Issue D dated 16 January 2017.

4. As a consequence of Order 3 the development consent is now subject to the consolidated modified conditions of development consent set out in Annexure ‘A” to these orders.

…………….

G Brown

Commissioner

312185.16 Brown (C) (304 KB, pdf)

312185.16 Plans (4.08 MB, pdf)