Radice v City of Canada Bay Council

[2020] NSWLEC 1090

Land and Environment Court

New South Wales

Medium Neutral Citation:	Radice v City of Canada Bay Council [2020] NSWLEC 1090
Hearing dates:	Conciliation conference on 21 January 2020
Date of orders:	27 February 2020
Decision date:	27 February 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) The Applicant is granted leave to amend Development Application DA2019/0011 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto. (2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,500.00 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Development consent for Development Application DA2019/0011 for the construction of a 3 to 5 storey building at the premises known as 189 Victoria Road, Drummoyne, is granted subject to the conditions of consent annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPEAL – conciliation conference – boarding house development – agreement between the parties – orders
Legislation Cited:	Canada Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Barry Radice (Applicant) City of Canada Bay Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2019/168096
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application DA2019/0011 seeking consent for the construction of a 3 to 5 storey building comprising ground floor commercial tenancy fronting Victoria Road with boarding house above at 189 Victoria Road, Drummoyne.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 21 January 2020. I presided over the conciliation conference.

3. 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 the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 17 February 2020.

4. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

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. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [8]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the B4 Mixed Use zone as identified by the Canada Bay Local Environmental Plan 2013 (CBLEP). The provisions of the B4 zone permit boarding house development with consent that is consistent with the objectives of the zone, which are as follows

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

2. The site is adjacent to a heritage item, a former Westpac Bank (I477) listed for its local heritage significance in Schedule 5 of the CBLEP and it is on this basis that the provisions of cl 5.10(4) require the Court consider the effect of the proposed development on the heritage significance of the item, and on the Victoria Road Heritage Conservation Area (HCA) which is also proximate.

3. On the basis of the Heritage Impact Statement prepared by Ms Anne Warr, heritage consultant, and the amended plans that incorporate the changes agreed between the parties, I am satisfied that the proposed development will not adversely impact the heritage item or the Victoria Road HCA.

4. Pursuant to Clause 30A of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), I have considered, and accept, that the design amendments incorporated in to the amended plans result in a development that is compatible with the character of the local area.

5. Clause 7 of the State Environmental Planning Policy No 55—Remediation of Land requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the Preliminary Site Contamination Assessment and the Remedial Action Plan prepared by Integrated Environmental dated 19 August 2019, I am satisfied that the land will be remediated before the land is used for the development that is proposed to be carried out.

6. As the jurisdictional prerequisites to the grant of consent have been addressed 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. Accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. 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.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend Development Application DA2019/0011 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,500.00 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development consent for Development Application DA2019/0011 for the construction of a 3 to 5 storey building at the premises known as 189 Victoria Road, Drummoyne, is granted subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (219 KB)

Plans (1.75 MB)

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Decision last updated: 03 March 2020