Powani v Lake Macquarie City Council

[2017] NSWLEC 1695

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Powani v Lake Macquarie City Council [2017] NSWLEC 1695
Hearing dates:	Conciliation conferences on 26 October 2017, 9, 22 November 2017,
Date of orders:	05 December 2017
Decision date:	05 December 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwellings, erection of multi unit housing development, lot consolidation and 7 lot strata subdivision; 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:	Deepak Powani (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Solicitor: Mr G Long, solicitor(Applicant) Mr T To, barrister (Respondent)
File Number(s):	2017/156219
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA/1675/2016 for demolition of existing dwellings, erection of Multi Dwelling Housing, two into one lot consolidation and 7 lot Strata Subdivision at 84 and 86 Dudley Road, Charlestown. demolition of existing dwellings, erection of Multi Dwelling Housing, two into one lot consolidation and 7 lot Strata Subdivision

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. the Applicant be granted leave to rely upon the following amended plans:

1. (a) Architectural Plans: ELK Designs Newcastle Project No. 16054

1. (i) Title Sheet/Summary of BASIX Commitments - DA001

2. (ii) Site Plan - DA003 - Issue M dated 21 November 2017

3. (iii) Ground Floor Plan - DA100 - Issue J dated 15 November 2017

4. (iv) First Floor Plan - DA101 - Issue J dated 15 November 2017

5. (v) Roof Plan - DA102 - Issue G dated 31 October 2017

6. (vi) Elevations - DA300 - Issue I dated 15 November 2017

7. (vii) Elevations - DA301 - Issue I dated 15 November 2017

8. (viii) Sections - DA400 - Issue I dated 15 November 2017

(b) Stormwater Plans: MPC Consulting Engineers Project No. 16-797

1. Stormwater Plan Sheet 1 - C01 - Issue 8 dated 21 November 2017

2. Stormwater Plan Sheet 2 and Details - C02 - Issue 6 dated 21 November 2017

(c) Preliminary Strata Plans: John Charles Sorby; Project No. B1492SP

1. Location Plan - Sheet 1 of 3 - Undated

2. Floor Plan - Ground Level - Sheet 2 of 3 - Undated

3. Fllor Plan - Level 1 - Sheet 3 of 3 - Undated

(d) Landscape Plans: JK's Garden Creations

1. Overall Landscape Plan - 2 of 5 - dated 21 November 2017

2. Units 1-4 Landscape Plan - 3 of 5 - dated 21 November 2017

3. Units 5-7 Landscape Plan - 4 of 5 - dated 21 November 2017

4. Specification Plan - 5 of 5 dated 21 November 2017

(e) Arborist Report: Bradley Magus of Abacus Tree Services dated 6 February 2017 (amended November 2017)

(f) Waste Management Plan: ELK Designs dated 10 November 2017

2. the appeal be upheld;

3. development consent be granted for demolition of existing dwellings, erection of Multi Dwelling Housing, two into one lot consolidation and 7 lot Strata Subdivision at 84 and 86 Dudley Road, Charlestown NSW 2290 on conditions set out in Annexure A;

4. the Applicant pay the Respondent’s costs pursuant to s97B of the Act as agreed in the sum of $5,000.

……………………….

Commissioner Brown

Annexure A

Amendments

22 November 2018 - Correct Order (1) (b) to reflect approved Stormwater Plans instead of duplicate Landscape Plans.

21 November 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties, amend orders of 5 December 2017 so that Order (1) now reads:

(1) The Applicant be granted leave to rely upon the following amended plans:

(a) Architectural Plans: ELK Designs Newcastle Project No. 16054
(i) Title Sheet/Summary of BASIX Commitments - DA001
(ii) Site Plan - DA003 - Issue M dated 21 November 2017
(iii) Ground Floor Plan - DA100 - Issue J dated 15 November 2017
(iv) First Floor Plan - DA101 - Issue J dated 15 November 2017
(v) Roof Plan - DA102 - Issue G dated 31 October 2017
(vi) Elevations - DA300 - Issue I dated 15 November 2017
(vii) Elevations - DA301 - Issue I dated 15 November 2017
(viii) Sections - DA400 - Issue I dated 15 November 2017

(b) Stormwater Plans: MPC Consulting Engineers Project No. 16-797
(i) Stormwater Plan Sheet 1 - C01 - Issue 8 dated 21 November 2017
(ii) Stormwater Plan Sheet 2 and Details - C02 – Issue 6 dated 21 November 2017

(c) Preliminary Strata Plans: John Charles Sorby; Project No. B1492SP
(i) Location Plan - Sheet 1 of 3 - Undated
(ii) Floor Plan – Ground Level - Sheet 2 of 3 - Undated
(iii) Floor Plan – Level 1 - Sheet 3 of 3 - Undated

(d) Landscape Plans: JK’s Garden Creations
(i) Overall Landscape Plan - 2 of 5 – dated 21 November 2017
(ii) Units 1-4 Landscape Plan - 3 of 5 – dated 21 November 2017
(iii) Units 5-7 Landscape Plan - 4 of 5 – dated 21 November 2017
(iv) Specification Plan - 5 of 5 dated 21 November 2017

(e) Arborist Report: Bradley Magus of Abacus Tree Services dated 6 February 2017 (amended November 2017)

(f)Waste Management Plan: ELK Designs dated 10 November 2017.