Sharma v Strathfield Municipal Council

[2019] NSWLEC 1245

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sharma v Strathfield Municipal Council [2019] NSWLEC 1245
Hearing dates:	Conciliation conference 14 May 2019 and 24 May 2019
Date of orders:	06 June 2019
Decision date:	06 June 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1)   Leave is granted to the applicant to rely on the amended architectural and landscape plans set out in condition 2.1 of Annexure A. (2)   The appeal is upheld. (3)   Development consent is granted to Development Application No. DA2018/37 for the demolition of existing buildings and construction of a two storey residential dwelling and basement car parking on Lot 2 of Deposited Plan 363927, known as 4 Verona Street, Strathfield, subject to the conditions of consent in Annexure A.
Catchwords:	DEVELOPMENT APPEAL – appeal against refusal – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and assessment Act 1979 Land and Environment Court Act 1979 Strathfield Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Rajeev Sharma (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Solicitors: A Bilias, Bilias & Associates (Respondent)   Other: R Sharma, self-represented (Applicant)
File Number(s):	2018/284277
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 (EPA Act) against the refusal by Strathfield Municipal Council (‘the respondent’) of DA 2018/37 for the demolition of existing structures and a new construction of two storey dwelling with a level of basement car parking at 4 Verona Street, Strathfield on Lot 2, DP 363927.

2. The appeal was subject to mandatory conciliation on 14 May 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). In this matter, at a conciliation conference, 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 was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 22 May 2019.

3. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 decision agreed by the parties is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

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 [9]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone as identified by the Strathfield Local Environmental Plan 2012 (SLEP). The provisions of the R2 zone permit single dwelling housing development that is consistent with the objectives of the zone, which are as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To ensure that development of housing does not adversely impact the heritage significance of adjacent heritage items and conservation areas.

2. The site is within the floodplain of the Cooks River, and a Flood Risk Management Report prepared by Nastasi & Associates dated 20 February 2018 identifies the relevant flood level on the site to vary between RL15.50 and RL16.00. I am satisfied that the report, and the amended plans dated 15 May 2019 addresses the requirements of cl 6.3 of the SLEP in relation to flood planning.

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.

7. 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.

8. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

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

1. Leave is granted to the applicant to rely on the amended architectural and landscape plans set out in condition 2.1 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA2018/37 for the demolition of existing buildings and construction of a two storey residential dwelling and basement car parking on Lot 2 of Deposited Plan 363927, known as 4 Verona Street, Strathfield, subject to the conditions of consent in Annexure A.

…………………………..

T Horton

Commissioner of the Court

Annexure A 

**********

Decision last updated: 06 June 2019