Proietti v City of Canada Bay Council

[2019] NSWLEC 1480

Land and Environment Court

New South Wales

Medium Neutral Citation:	Proietti v City of Canada Bay Council [2019] NSWLEC 1480
Hearing dates:	Conciliation conference on 3 October 2019
Date of orders:	09 October 2019
Decision date:	09 October 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”. (2) The Applicant is to pay those costs of the respondent that have been thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed. (3)   The appeal is upheld. (4)   Development consent is granted to Development Application No. DA-2018/0080 seeking consent for alterations and additions to an existing food and drink premises including approval for the use of the rear indoor dining room and an increase of internal seating from 20 to 30 patrons; and an extension of trading hours being Sunday to Wednesday: 7am to 4pm and Thursday to Saturday: 7am to 10pm on the land at 563 Great North Road, Abbotsford NSW 2046, subject to the conditions of consent annexed hereto and marked “A.”
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Canada Bay Local Environmental Plan 2009 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Augusto Proietti (Applicant) City of Canada Bay Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) M Cottom (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicant) Pikes and Verekers Lawyers (Respondent)
File Number(s):	2018/356533
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against City of Canada Bay’s refusal of Development Application DA-2018/0080 seeking approval for a change of use for the residential components of the mixed use building to commercial uses ancillary to the approved cafe, and an increase to the approved seating capacity from twenty (20) to fifty (50) seats, at 563 Great North Road, Abbotsford (‘site’). Modification of operating hours of the cafe was also proposed to include the proposed external dining area from Sunday to Wednesday 7am to 4pm, Thursday to Saturday 7am to 10pm.

2. The original application was not supported by Council for grounds including: inadequate parking provision, visual and acoustic privacy impacts and the level of intensification of use proposed having regard to the local setting.

3. Following the preparation of amending plans (which provided for a considerable scaling back of development), and prior to the matter going to hearing, at their request, the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 3 October 2019, and at which I presided. At the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. They also provided an explanation on the response to the lay objections.

4. The parties’ decision involved the Court upholding the appeal and granting development consent to the development application, as amended, subject to conditions.

5. 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.

Jurisdiction

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised that the proposal had been properly made and there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. In terms of jurisdiction, the parties advise that:

1. The proposal is permissible on the site and complies with development standards contained in the LEP.

2. In regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (and what is termed the “draft Remediation SEPP”), Council has undertaken an assessment of the site and concluded that given its current use and use history, the site was unlikely to have been used for a potentially contaminating activity. On the basis of Council’s assessment and its decision to support the proposal, I am satisfied that the question of contamination is adequately considered.

7. I further note that there has been consideration of neighbour submissions in accordance with the requirements of s 4.15(1)(d).

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 to dispose of the proceedings in accordance with the parties’ decision. I note that in coming to this decision, I was not required to give consideration to the overall merits of the proposal, and no such consideration has been given.

9. The Court orders:

1. The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”.

2. The Applicant is to pay those costs of the respondent that have been thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA-2018/0080 seeking consent for alterations and additions to an existing food and drink premises including approval for the use of the rear indoor dining room and an increase of internal seating from 20 to 30 patrons; and an extension of trading hours being Sunday to Wednesday: 7am to 4pm and Thursday to Saturday: 7am to 10pm on the land at 563 Great North Road, Abbotsford NSW 2046, subject to the conditions of consent annexed hereto and marked “A.”.

………………………………

P Walsh

Commissioner of the Court

Annexure A (280 KB)

Architectural Plans (1.26 MB)

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Decision last updated: 09 October 2019