Popovic v Shoalhaven City Council

[2018] NSWLEC 1618

Land and Environment Court

New South Wales

Medium Neutral Citation:	Popovic v Shoalhaven City Council [2018] NSWLEC 1618
Hearing dates:	Conciliation conferences on 1 and 8 November 2018
Date of orders:	30 November 2018
Decision date:	30 November 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [9] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Shoalhaven Local Environmental Plan 2014 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Steve Popovic (Applicant) Shoalhaven City Council (Respondent)
Representation:	Solicitors: M Mantei, Planning Law Solutions (Applicant) S Schneider, Houston Dearn O’Connor (Respondent)
File Number(s):	2018/251053
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against deemed refusal by Shoalhaven City Council of Development Application No. DA 18/1280. The amended application is based on amended plans which seeks the use of unauthorised building works, relating to timber deck, windows, external cladding and internal laundry, as well as the construction of new building work consisting of privacy screens, pergola and metal bushfire shields on posts and external cladding at Lot 35 DP 8685, also known as 13 Bonderee Avenue, Hyams Beach.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to ss 4.16 and 4.69 of the EPA Act 1979.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which were held on 1 (onsite) and 8 November 2018. I have presided over the conciliation conferences. There were objections raised by two residents whilst onsite relating to issues of privacy, flooding and bushfire risk.

4. In conciliation, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to amended DA 18/1280 with conditions.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under ss 4.16 and 4.69 of the EPA Act 1979 to grant consent to the development application with conditions for proposed and unauthorised works. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to ss4.14(1) and 4.15(1) of the EPA Act 1979, as consistency with the Shoalhaven Local Environmental Plan 2014, and cl 94 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg 2000) requiring conformity with the Building Code of Australia. Specifically, the parties explained that the development is based on amended plans that results in no adverse amenity impacts due to a reduction in balcony length and installation of balcony privacy screens. In resolution of the bushfire risk, the applicant will install metal bushfire shields to support posts and fit shutters/screens to openings, as described in Annexure “A” and in compliance with s 4.14(1)(a). The parties explained that the development is not affected by flooding through the riparian corridor or affects riparian vegetation.

6. The objectors’ issues are therefore adequately addressed, by amended plans and conditions of consent.

7. I am therefore 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 1979.

8. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

9. The Court orders:

1. The Applicant is granted leave to rely on the plans and documents set out under the conditions of consent annexed hereto and marked "A".

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA 18/1280 for the use of unauthorised building work, including timber deck, windows, external cladding and internal laundry, as well as the construction of new building work consisting of privacy screens, pergola and metal bushfire shields on posts and external cladding at Lot 35 DP 8685, also known as 13 Bonderee Avenue, Hyams Beach, subject to the conditions of consent annexed hereto, marked "A".

4. No cost orders are made.

……………………..

S Bish

Commissioner of the Court

Annexure A (C)

Plans

**********

Decision last updated: 30 November 2018