Simpson v Northern Beaches Council

[2019] NSWLEC 1004

Land and Environment Court

New South Wales

Medium Neutral Citation:	Simpson v Northern Beaches Council [2019] NSWLEC 1004
Hearing dates:	Conciliation conference on 21 December 2018
Date of orders:	09 January 2019
Decision date:	09 January 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [9] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving the development of a residential flat building and strata subdivision
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Christine Ann Simpson (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: A Sattler, Sattler & Associates Pty Ltd (Applicant) E Julliard, Northern Beaches Council (Respondent)
File Number(s):	2018/231250
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of development application DA No. 2017/1062 (DA) for demolition of existing structures and construction of a 2-storey residential flat building containing 3 units and landscaping and ancillary works at 97 Lagoon Street, Narrabeen (site). The site is also described as Lot 4 DP450303. The DA also proposes strata subdivision.

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 December 2018. I presided over the conciliation conference.

3. At the conciliation conference, the parties provided to the Court an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to the Applicant to rely on amended plans (which the Respondent has agreed resolves the reasons for refusal by improving solar access to the adjoining property and reduces the visual bulk of the development) and 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 parties’ decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to grant consent to the development application.

5. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied.

6. 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. The parties also agree that, pursuant to section 8.15(3) of the EPA Act, an order for the payment by the applicant of those costs of the Respondent that have been thrown away as a result of the amendment of the DA should be made, and that the quantum of costs payable is $900.

9. The Court orders:

1. Leave is granted to the applicant to rely upon the amended plans as set out in condition No.1 of Annexure A.

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $900.00 within 21 days of the date of order.

3. The Appeal is upheld.

4. Development Application 2017/1062 for the demolition of existing structures and construction of residential flat building and landscape works at 97 Lagoon Street, Narrabeen is approved subject to the conditions in Annexure A.

…………………………..

P Walsh

Commissioner of the Court

s34 plans 

Annexure A (97.6 KB, pdf)

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Decision last updated: 10 January 2019