Rahman v North Sydney Council

[2019] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:	Rahman v North Sydney Council [2019] NSWLEC 1363
Hearing dates:	Conciliation conference on 31 July 2019
Date of orders:	02 August 2019
Decision date:	02 August 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The appeal is upheld and Development Consent No. 316/15 is modified as follows: (a)   conditions C27 and G12 are deleted from the conditions of consent; and (b)   the new conditions as set out in Annexure A be inserted to the conditions of consent. (2)   No order as to costs.
Catchwords:	MODIFICATION APPLICATION – substantially the same development – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2013 Roads Act 1993
Category:	Principal judgment
Parties:	Beth Rahman (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) S Nash (Respondent)   Solicitors: DG Briggs and Associates (Applicant) Matthews Folbigg (Respondent)
File Number(s):	2019/126904
Publication restriction:	No

Judgment

1. COMMISSIONER: This modification application of a development consent was made under s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act). It relates to Lot 34 DP 4389 known as 12 Milson Road, Cremorne Point.

2. The development consent the subject of the modification application was granted on 6 April 2016.

3. The land and its adjoining road reserve over which the subject suspended access way is constructed is within Zone R2 – Low Density Residential under the provisions of North Sydney Local Environmental Plan 2013 (NSLEP).

4. The Council has granted development consent to the development application and granted approval to the construction of the access way pursuant to s 138 of the Roads Act 1993 subject to conditions.

5. The work the subject of the s138 application has been carried out.

6. The application is to delete from the terms of the consent conditions C27 and G12.

7. The former condition required that prior to the issue of a Construction Certificate the applicant submit a written commitment to the Council for entry into a lease agreement with Council for the use of the air space above Council land for the proposed driveway bridge linking the proposed garage and Milson Road.

8. The later condition required the lease agreement with Council for the use of the air space above Council land for the proposed driveway bridge to be executed and the lease commenced prior to the issue of any Occupation Certificate (OC). The executed lease agreement with Council was to contain all the required documents under the lease.

9. The development has been completed.

10. The PCA will not give an OC until the two conditions have been deleted as the applicant was not willing to enter a lease of the airspace above Milson Road.

11. There is no jurisdictional reason why the Court ought not to make the orders sought.

12. 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 31 July 2019. I presided over the conciliation conference.

13. 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 consent to the application to modify the two conditions of Development Consent No. 316/15.

14. 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 4.55 of the EPA Act to grant consent to the application. The council has agreed to the deletion of these two conditions. Two further conditions are proposed to the consent by the parties – dealing with insurance and maintenance of the structure.

15. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard, I am satisfied that the development resulting from the application to modify is substantially the same as the development the subject of the development consent.

16. 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.

17. 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.

18. The Court orders:

1. The appeal is upheld and Development Consent No. 316/15 is modified as follows:

1. conditions C27 and G12 are deleted from the conditions of consent; and

2. the new conditions as set out in Annexure A be inserted to the conditions of consent.

2. No order as to costs.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (140 KB)

Consolidated Conditions (636 KB)

**********

Decision last updated: 02 August 2019