Parwood Pty Ltd v Sutherland Shire Council

[2019] NSWLEC 1288

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parwood Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1288
Hearing dates:	Conciliation conference on 21 June 2019
Date of orders:	26 June 2019
Decision date:	26 June 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended landscaping plans prepared by Nicholas Bray Landscapes dated 18 June 2019 as listed in Annexure A; (2) The appeal is upheld; (3) Modification application MA/18/0358 lodged with the Respondent on 3 October 2018 is determined by approving the modifications to DA/15/1178 as set out in Annexure A. (4) As a consequence of (3), development consent DA/15/1178 (as modified) granted by the Respondent is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
Catchwords:	MODIFICATION APPLICATION – increase in car parking spaces in basement- 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:	Parwood Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: A Gadiel, Mills Oakley (Applicant) R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/349987
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 MA/18/0358. The original development application (DA/15/1178) sought consent for demolition and construction of 1.5 levels of basement car parking and 57 apartments. The subject site is 7 Dianella Street, Caringbah.

2. This modification application seeks to make modifications to the basement and lower ground levels to increase the provision of car parking spaces in the development from 109 to 122.

3. 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.

4. 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. During the conciliation process additional landscaping has been agreed between the parties.

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

2. 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 rely on the amended landscaping plans prepared by Nicholas Bray Landscapes dated 18 June 2019 as listed in Annexure A;

2. The appeal is upheld;

3. Modification application MA/18/0358 lodged with the Respondent on 3 October 2018 is determined by approving the modifications to DA/15/1178 as set out in Annexure A.

4. As a consequence of (3), development consent DA/15/1178 (as modified) granted by the Respondent is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (281 KB)

Annexure B (383 KB)

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Decision last updated: 26 June 2019