See Win Holdings (ABN 65 132 944 542) ATF See Win Trust (ABN 38 124 477 479) v Cumberland Council

[2019] NSWLEC 1124

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	See Win Holdings (ABN 65 132 944 542) ATF See Win Trust (ABN 38 124 477 479) v Cumberland Council [2019] NSWLEC 1124
Hearing dates:	Conciliation conference on 27 March 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [8] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	See Win Holdings (ABN 65 132 944 542) ATF See Win Trust (ABN 38 124 477 479) (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: M Fozzard (Respondent)   Solicitors: J Hughes, Baker MacKenzie (Applicant) Bilias and Associates (Respondent)
File Number(s):	2018/268096
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application 53/2017.The Applicant sought and was granted leave to amend their application on 28 September 2018. As amended the application seeks consent for: Torrens title subdivision of one lot into two lots; creation of access easements; and Strata title subdivision of the existing mixed use development.

2. The development is proposed at 11 John Street, Lidcombe (Lot 300 DP 1142325). The proposed Torrens title subdivision would create a new Lot 1 in the western part of the site containing the existing Police Building and a new Lot 2 in the eastern portion of the site containing the recently constructed mixed use building.

3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 27 March 2019. Following the conciliation an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The property is zoned B4 – Mixed Use pursuant to the Auburn Local Environmental Plan 2010 (LEP 2010). The objectives of the zone have been considered in determining the development application.

2. Pursuant to cl. 2.6 of LEP 2010 subdivision requires consent. No minimum lot size development standard applies to the subject site.

3. The application has been notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

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

1. The appeal is upheld

2. Development Application No 531/2017 for Torrens Title subdivision of one lot into two lots, creation of access easement and Strata Title subdivision of the existing mixed use development, at 11 John Street, Lidcombe NSW 2141 is approved subject to conditions at Annexure “A”.

…………………….

D M Dickson

Commissioner of the Court

Annexure A: Annexure A (163 KB, pdf)

Amendments

28 March 2019 - Correction to typographical errors on Cover Sheet

Decision last updated: 28 March 2019