Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1113

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1113
Hearing dates:	Conciliation conference on 14 March 2019
Date of orders:	18 March 2019
Decision date:	18 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [7] below
Catchwords:	MODIFICATION 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:	Parker Logan Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: T To (Applicant)   Solicitors: Boskovitz Lawyers (Applicant) K Webber, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/231019
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 deemed refusal of its modification application DA/607/2015/3. The modification application, as lodged, sought to delete Condition A2 of the development consent. Condition A2 required the construction, at no cost to Council, of a pedestrian access way connecting the site with Bellevue Road. The subject site is 9A Cooper Park Road, Bellevue Hill.

2. 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.

3. 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 14 March 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 that the appeal, as amended by Order 1, is upheld and the amended modification application is approved.

4. 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. the development to which the consent as modified relates is substantially the same as the development for which the consent was originally granted;

2. the modification application was notified in accordance with the relevant development control plan;

3. reasonable attempts were made to ensure the modification application was notified to each person who made a submission to the original development application;

4. the submissions have been taken into consideration in the assessment and determination of the application;

5. in making these orders I have taken into consideration those matters under s 4.15(1) of the EPA Act as are relevant to the modification application, as well as the reasons given by the consent authority for the grant of the consent.

5. 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.

6. 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.

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

1. Leave is granted to amend the Class 1 Application filed on 27 July 2018 to replace the reference to Section ‘4.55’ with Section ‘4.56’;

2. The appeal is upheld;

3. Modification Application DA 607/2015/3 is approved by amendment of Conditions A.2 and A.3, and the addition of Condition I.10 to the subject development consent, as set out in Annexure A.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (822 KB, pdf)

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Amendments

28 March 2019 - 'Conciliation conference on ' added to 'Hearing dates' on coversheet