Petco Animal Supplies Pty Ltd v Northern Beaches Council

[2021] NSWLEC 1277

Land and Environment Court

New South Wales

Medium Neutral Citation:

Petco Animal Supplies Pty Ltd v Northern Beaches Council [2021] NSWLEC 1277

Hearing dates:

Conciliation conference on 4 February 2021, 9 April and 23 April 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

Proceedings 2020/279125

The Court Orders:

(1) The appeal is upheld.

(2) Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, the Court revokes Developmental Control Order EPA2020/0108, being an Order No 6, issued by the Respondent to the Applicant on 31 August 2020.

Proceedings 2020/279121

The Court Orders:

(1) The applicant is granted leave to amend the modification application and rely on the Drawing No SK01 Revision C, prepared by MAXAM + Co dated 16 February 2021.

(2) The appeal is upheld.

(3) Application MOD2020/0050 to modify the development consent DA2007/133 is approved subject to the condition set out in Annexure “A”.

(4) The Council is to consolidate Modification 2007/0133/MOD1 dated 21 November 2007 together with MOD 2020/0051 granted today into the consent document for Development Application DA2007/1333 granted 23 February 2007 in accordance with Annexure “B” hereto.

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy No 64—Advertising and Signage

Warringah Local Environmental Plan 2011

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Petco Animal Supplies Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/279125 and 2020/279121

Publication restriction:

No

Judgment

1. COMMISSIONER: On 27 October 2020 the Court ordered that proceedings 2020/279125 and 2020/279125 run concurrently.

1. Proceedings 2020/279125: The Applicant is appealing the Development Control Order (DCO) issued by Northern Beaches Council (Council) on 31 August 2020 pursuant to s 9.34(1)(a), and the terms of order in the tables in Part 1 of Schedule 5 Order No. 6: Remove Advertising Order, of the Environmental Planning and Assessment Act 1979 (EPA Act), the appeal being brought pursuant to s 8.18(1) of the EPA Act on 25 September 2020 (DCO Proceedings).

2. The DCO required the Applicant to remove a large ‘Pet-O’ sign adjacent to the property boundary on Pittwater Road, Brookvale (specifically removal of the ‘Pet-O’ pole sign and associated structure adjoining the front boundary of the site, with dimensions of 3500mm x 1760mm), within 30 days of the date of the DCO. Below is a photograph of the signage, one of which is lawful and the other sign (Pet O) required removal under the DCO.

3. Proceedings 2020/279121: The Applicant lodged a Modification Application MOD2020/0050 (Modification Application) with Council to modify Development Consent DA2007/133 (DA Consent) on 25 September 2020 pursuant to s 4.55(2) of the EPA Act. The Council determined the Modification Application by granting consent on 14 May 2020, but it also imposed a condition of consent denying the use of the pole sign, the subject of the DCO proceedings. The Applicant appealed Council’s decision in relation to the relevant condition of the Modification Application on 25 September 2020 pursuant to subss 8.7(1) and (2) of the EPA Act, and in compliance with the time provisions set out in s 8.10 of the EPA Act.   

4. Both the DCO proceedings, and the Modification Application appeal fall within Class 1 of the Court’s jurisdiction, pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

5. In relation to the DCO proceedings, I must exercise the functions under ss 8.18(4) and 4.16 of the EPA Act respectively, and ss 34(3) and 39 of the LEC Act.

6. In relation to the Modification Application proceedings. I must exercise the functions under ss 4.55, 4.16, 8.14 of the EPA Act and ss 34(3) and 39 of the LEC Act.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 February 2021, 9 and 23 April 2021. I presided over the conciliation conference.

Background

3. The site that is the subject of both proceedings is located at 626 Pittwater Road, Brookvale (the site) known as Lot 4 in Deposited Plan 539384.

4. The site is a battle-axe allotment with the access handle on the north-western corner of the site. There is a lack of visibility from Pittwater Road for the site’s building.

5. The site has an area of 2,192m² and contains a part one-storey and part two-storey building which is used for the retail supply of pet goods and equipment, and provides dog grooming and veterinary services.

6. DCO proceedings:

1. The DCO requires the Applicant to modify, demolish or remove an unlawful advertisement and any associated structure from the site.

2. The terms of the DCO are as follows:

“To: modify, demolish or remove an advertisement and any associated structure, specifically:

1.   ‘Pet-O’ pole sign adjoining the front boundary of the site, of dimensions 3500mm x 1760m.”

3. The DCO relates to Condition ‘1C’ of Development Consent Mod2020/0050 (the Consent) at the site.

4. Condition C of the Consent provides as follows:

“C. Add Condition No 1C – Pole Sign:

The pole sign adjoining the front boundary of the site, of dimensions 3500mm x 1760mm does not form part of this consent.

Reason: To ensure compliance with Council and State policies for signage (Special Condition).”

7. Modification Application proceedings:

1. On 23 February 2007 the Council granted consent to the Development Consent for    the use of the premises on the site as a ‘Change of Use to Bulky Goods Shop’.

2. On 21 November 2007 the Council granted consent to modification application 2007/0133/MOD1.

3. On 12 February 2020 the Applicant lodged a modification application to the Council seeking approval for the prospective use of ‘existing illuminated business identification signs’. The purpose of this application was to regularise two existing signs that did not have planning approval.

4. The Modification Application was granted consent by Council on 14 May 2020 subject to conditions. However, whilst drawing DA-01 is stamped as an approved plan, one of the two signs was not approved for prospective use. This amendment to the Modification Application is reflected in Condition 1C of the consent, as set out in [6(3)-(4)] above.

5. The Applicant appealed the Modification Application, specifically in relation to Condition 1C.

8. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal in the Modification Application, and revoking the DCO.

Legislation

Environmental Planning and Assessment Act 1979

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the

(v)    (Repealed)

4.16   Determination (cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(3) “Deferred commencement” consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

(4) Total or partial consent A development consent may be granted—

(a)  for the development for which the consent is sought, or

(b)  for that development, except for a specified part or aspect of that development, or

(c)  for a specified part or aspect of that development.

(5)  The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development.

Note—

See also Division 4.4 for special procedures concerning concept development applications.

…

(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.

(12) Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55).

(13), (14)    (Repealed)

4.55   Modification of consents—generally (cf previous s 96)

…

Note—

Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.

…

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

(5)    (Repealed)

…

(6A), (7)    (Repealed)

…

8.7   Appeal by applicant—applications for development consent (cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2)  For the purposes of this section, the determination of an application by a consent authority includes—

(a)  any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b)  any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

…

8.10   Time within which appeals may be made

(1)  An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or

(b)  12 months after the relevant date, if the relevant date occurs—

(i)  during the prescribed period, or

(ii)  during the 6-month period immediately before the prescribed period.

…

8.14   Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act)

(1)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)  The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

(3)  If the consent authority was under this Act required to consult or obtain the concurrence of another person or body before making the decision the subject of an appeal under this Division—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence has been granted, and

(b)  in a case where the concurrence has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

…

9.34   Orders that may be given (cf previous s 121B)

(1)  The development control orders that may be given under this Act are as follows—

(a)  general orders in accordance with the table to Part 1 of Schedule 5,

(b)  fire safety orders in accordance with the table to Part 2 of Schedule 5,

(c)  brothel closure orders in accordance with the table to Part 3 of Schedule 5.

(2)  The regulations may amend those tables.

(3)  A reference in those tables to a planning approval is a reference to a development consent, an approval for State significant infrastructure or a certificate under Part 6 (other than a compliance certificate).

Note—

See also Part 4 of the Building Products (Safety) Act 2017.

Schedule 5 Development control orders

Part 1 General orders: Column 1 No 6

Section 8.18   Appeals concerning orders (cf previous s 121ZK)

(1)  A person who is given a development control order may appeal to the Court against the order.

(2)  However, a person may not appeal against a fire safety order given by an authorised fire officer (other than an order that prevents a person using or entering premises).

(3)  The appeal may be made only—

(a)  within 28 days after the development control order is given to the person, or

(b)  if an order is given subsequently that forms part of the development control order, within 28 days after the subsequent order is given to the person.

(4)  On hearing an appeal, the Court may—

(a)  revoke the development control order, or

(b)  modify the development control order, or

(c)  substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d)  find that the development control order is sufficiently complied with, or

(e)  make such order with respect to compliance with the development control order as the Court thinks fit, or

(f)  make such other order with respect to the development control order as the Court thinks fit.

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

…

(d)  appeals and applications under sections 179, 181, 526 (and section 526 as applied by section 531), 574, 677 and 730 of the Local Government Act 1993, 

…

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

Warringah Development Control Plan 2011

Part D – D23 Signs

D23 Signs

Applies to Land

This control applies to land to which Warringah Local Environmental Plan 2011 applies.

Objectives

• To encourage well designed and suitably located signs that allow for the identification of a land use, business or activity to which the sign relates.
• To achieve well designed and coordinated signage that uses high quality materials.
• To ensure that signs do not result in an adverse visual impact on the streetscape or the surrounding locality.
• To ensure the provision of signs does not adversely impact on the amenity of residential properties.
• To protect open space areas and heritage items or conservation areas from the adverse impacts of inappropriate signage.

Requirements

1. Signs are to be sited and designed so that they do not adversely impact on the amenity of the streetscape and the surrounding locality. In particular, signs are not to dominate or obscure other signs or result in visual clutter.
2. Signs are to be compatible with the design, scale and architectural character of the building or site on which they are to be placed.
3….

4. Signs are not to obscure views of vehicles, pedestrians or potentially hazardous road features or reduce the safety of all users of any public road (including pedestrians and cyclists).
5. Signs should not be capable of being confused with, or reduce the effectiveness of, traffic control devices.
6. Signs are not to emit excessive glare or cause excessive reflection.
7. Signs should not obscure or compromise important views.
8. …..

9. ……
10. No more than one sign is to be located above the awning level for business uses.
11. Tenancy boards and the like are encouraged to be in the form of consolidated signs.
12. Signs shall meet the following criteria:

13.

Sign

Criteria

Awning fascia sign (attached to the fascia or return end of an awning)

Shall not project above, below or beyond the fascia or return end of the awning to which it is attached.

Freestanding signs (not being a sign elsewhere listed in this table, and includes a bulletin board, tenancy board, and the like)

Shall not exceed 2 metres in height above the existing natural ground level;

Shall not have an area greater than 4sqm;

Shall not project beyond the boundary of the premises; and

Shall not be illuminated.

Pole or pylon sign (erected on a pole or pylon independent of any building or other structure)

Shall not be less than 2.6 metres above ground level;

Shall not exceed 6 metres in height above the existing natural ground level;

Must have a maximum area of no more than 4sqm on any single face; 

Shall not project beyond the boundary of the premises; and

No more than one pole/pylon sign per site is permitted. 

……

14. The following signs are not considered appropriate and are discouraged: 
    • Flashing or moving signs on all land other than the carriageway of a public road 
    • Pole or pylon signs, unless there is no building on the site, or the building is not visible from the street or public domain; this does not include identification, interpretive, directional and advance warning signs described as Exempt Development, or a sign erected by the Council for the display of community information; 
……..

Exceptions

Reference should be made to Part G for site specific requirements.

Note

All signage is to be consistent with the requirements of State Environmental Planning Policy No.64 – Advertising and Signage.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 8.18(4) of the EPA Act for the DCO proceedings to revoke the DCO, and s 4.16(1)(a) of the EPA Act to uphold the appeal and grant consent for the Modification Application proceedings.

Jurisdictional Prerequisites

10. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be:

1. The DCO and Modification Application proceedings: The s 34 conciliation conference was adjourned to enable the Applicant to provide additional information and amended documentation to the Council. After provision of the information and documentation, the parties reached agreement in principle as to the terms of a decision that would be acceptable to the parties.

2. The s34 agreement involved the removal of the unauthorised advertisements, and the authorised advertising signage, and the erection of new advertising signage on the site which are works approved by the modification application. The proposed decision in these proceedings is to uphold the appeal and revoke the Order in the DCO proceedings which involves the Court exercising the function under s 8.18(4)(a) of the EPA Act.

3. In relation to the Modification Application proceedings, the parties have agreed on the shape, size and content of the signage, which involves the Court upholding the appeal, and exercising its function under ss 4.55(2) and 4.16(1)(a) of the EPA Act to grant consent to the Modification Application in accordance with the deletion of condition 1C and insertion of condition 1D as set out in Annexure A, and the plan by Maxam + Co dated 16.02.2021 drawing SK01 Rev C referred to therein.

4. The Modification Application to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, because:

• The proposal remains substantially the same as that which was originally consented to, ie the use of pet supplies and veterinary services with ancillary uses.

• In terms of qualitative assessment of the proposal there will be no significant adverse environmental impact in terms of overshadowing, privacy, heritage, bulk and scale, traffic, parking, streetscape or character of the area.

• In terms of quantitative measures, the proposal remains substantially the same with no change in gross floor area, building height, number of car spaces, employees or house of operation.

5. The Modification Application complies with the relevant controls of Warringah Local Environmental Plan 2011 (WLEP2011) as follows:

• Zone objectives and permissibility: The site is zoned B5 Business Development. The proposal is permissible with development consent being ancillary to the approved use of the site for specialised retail premises and a veterinary hospital, which are permissible uses in the zone. The proposal is considered to be consistent with the relevant objectives of the zone, as follows: The signs complement and are an essential component of the specialised retail premises on the site and the safety of the pedestrian environment is maintained.

• Clause 4.3 prescribes a maximum building height of 11.0m – the proposal complies.

• Clause 5.10 the site is not a heritage item, is not within the vicinity of any heritage items, and is not within a heritage conservation area.

• The Modification Application does not breach any development standards.

6. The Modification Application complies with the planning rules in Warringah Development Control Plan 2011 (WDCP2011):

• B6 merit assessment of side boundary setbacks

• C2 traffic access and safety

• C7 excavation and landfill

• D6 access to sunlight

• D7 views

• D10 Building colours and materials

• D12 Glare and reflection

• D20 Safety and security

• D11 Flood prone land: the signs will have no impact on flood behaviour

• D23 Signs – many of the controls are repeated from those mentioned above. The other relevant control is:

“Shall not be less than 2.6 metres above ground level;

Shall not exceed 6 metres in height above the existing natural ground level;

Must have a maximum area of no more than 4sqm on any single face; 

Shall not project beyond the boundary of the premises; and No more than one pole/pylon sign per site is permitted.”

7. The height of the signage is 5.75mm plus 150mm for the plinth on which it stands. The parties agree that the design of the agreed signage meets the objectives of the Design Code for WDCP2011 as follows:

“Objectives

• To encourage well designed and suitably located signs that allow for the identification of a land use, business or activity to which the sign relates.
• To achieve well designed and coordinated signage that uses high quality materials.
• To ensure that signs do not result in an adverse visual impact on the streetscape or the surrounding locality.
• To ensure the provision of signs does not adversely impact on the amenity of residential properties.
• To protect open space areas and heritage items or conservation areas from the adverse impacts of inappropriate signage.”

11. The parties rely on the further details of the new signage as set out in a letter from the Applicant’s town planner, Geoff Goodyer of Symons Goodyer Pty Limited dated 23 February 2021, as follows:

1. The new pole signage is set back 500mm from the front property boundary and immediately adjacent to the northern property boundary. The new pole measures 5.75mm x 3.0m wide. The lower 2.0m of the structure is clear to   provide for driver and pedestrian sight lines.

2. The proposal is consistent with the objectives of State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64):

1. It is consistent with the visual character of the area.

2. It effectively communicates that the site is a pet supplies business.

3. It is of a high design quality and finish.

12. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

1. The DCO proceedings appeal was filed in Court in accordance with the time provisions in s 8.18(3)(a) of the EPA Act.

2. The Court has power to vary or revoke the DCO in accordance with s 8.18(4)(a) of the EPA Act.

3. The Modification Application proceedings were determined on 14 May 2020, and the appeal was filed in Court on 25 September 2020. The appeal was filed in accordance with the time limit in s 8.10 of the EPA Act.

4. The Modification Application was notified to adjoining neighbours. Only one submission was received which was from the adjoining neighbour to the north who objected to the existing signage being partly built on its land. The new signage will be contained wholly within the Applicant’s land.

5. In the circumstances where the parties have agreed to the Modification Application which results in the signage in question in the DCO being removed and replaced with a lawful sign, 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.

Orders

Proceedings 2020/279125

13. The Court orders:

1. The appeal is upheld.

2. Pursuant to s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, the Court revokes Developmental Control Order EPA2020/0108, being Order No 6 issued by the Respondent to the Applicant on 31 August 2020.   

Proceedings 2020/279121

14. The Court orders:

1. The Applicant is granted leave to amend the modification application MOD2020/0050 to rely upon Drawing No SK01 Revision C, prepared by MAXAM + Co dated 16 February 2021.

2. The appeal is upheld.

3. Application MOD2020/0050 to modify the development consent DA2007/133 is approved subject to the condition set out in Annexure “A”.

4. The Council is to consolidate Modification 2007/0133/MOD1 dated 21 November 2007 together with MOD 2020/0051 granted today into the consent document for Development Application DA2007/1333 granted 23 February 2007 in accordance with Annexure “B” hereto.

………………………

M Peatman

Acting Commissioner of the Court

Plan (201073, pdf)

Annexure A (104980, pdf)

Annexure B (219107, pdf)

**********

Decision last updated: 24 May 2021