Staldone Turramurra Pty Ltd v Lane Cove Council

[2020] NSWLEC 1468

Land and Environment Court

New South Wales

Medium Neutral Citation:

Staldone Turramurra Pty Ltd v Lane Cove Council [2020] NSWLEC 1468

Hearing dates:

Conciliation conference on 21 September 2020

Date of orders:

06 October 2020

Decision date:

06 October 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

See orders at [9] below

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing improvements and construction of a residential flat building – conciliation – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Staldone Turramurra Pty Ltd (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Corradini-Bird (Solicitor) (Respondent)

Solicitors:
Lindsay Taylor Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2019/309223

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of a Development Application No. DA94/2019 for the demolition of existing structures,   removal of 22 trees, construction of a 5 storey residential flat building containing 37 apartments (5 x 1 bedroom, 27 x 2 bedroom and 5 x 3 bedroom) over 2 levels of basement car parking containing 65 car parking spaces, 5 motorcycle spaces and 15 bicycle spaces and associated landscaping and stormwater works on the land at 640-646 Mowbray Road, Lane Cove North (the site).

2. On 21 September 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions.

4. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 21 September 2020 giving effect to the agreement in principle. The parties agreed, as do I, that the amendments in respect of which leave is to be granted are minor and accordingly the provisions s 8.15(3) EPA Act do not apply.

5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have provided to the Court a statement of the relevant jurisdictional prerequisites that they say are satisfied so this function can be exercised which is Annexure A hereto. I agree with the parties’ conclusions for the reasons stated and on the basis of the documents referred to.

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 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.

9. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans and documents:

DWG NO.	DESCRIPTION	PREPARED BY	REV	DATE
Cover Page	Wolski Coppin Architecture	18/09/2020
DA01C	Lower Basement	Wolski Coppin Architecture	C	03/09/2020
DA02F	Basement	Wolski Coppin Architecture	F	16/09/2020
DA03D	Ground	Wolski Coppin Architecture	D	16/09/2020
DA04D	Typical Plans (L1, L2, L3 similar)	Wolski Coppin Architecture	D	16/09/2020
DA05C	Level 4	Wolski Coppin Architecture	C	16/09/2020
DA06C	Roof & Site Plan	Wolski Coppin Architecture	C	16/09/2020
DA07B	Section AA & Section BB	Wolski Coppin Architecture	B	16/09/2020
DA08B	Driveway/Ramp Sections	Wolski Coppin Architecture	B	16/09/2020
DA09B	Elevations 01	Wolski Coppin Architecture	B	16/09/2020
DA10B	Elevations 02	Wolski Coppin Architecture	B	16/09/2020
F01A	Finishes 1	Wolski Coppin Architecture	A	14/05/2020
F02A	Finishes 2	Wolski Coppin Architecture	A	14/05/2020
69.20(19)/330’A’ 1/2	Landscape Plan	iScape Landscape Architecture	A	18/09/20
69.20(19)/331’A”2/2	Low Water Use Planting Plan	iScape Landscape Architecture	A	18/09/20
CC180535C1	Cover Sheet & Notes	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C2	Stormwater Management Plan – Ground Floor Sheet 1	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C3	Stormwater Management Plan – Ground Floor Sheet 2	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C4	Stormwater Management Plan – Ground Floor Sheet 3	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C5	Stormwater Management Plan – Basement	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C6	Stormwater Management Plan – Lower Basement	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C7	Stormwater Management Detail Sheet (No. 1)	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C8	Stormwater Management Detail Sheet (No. 2)	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C9	Stormwater Management Detail Sheet (No. 3)	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C10	Stormwater Management Detail Sheet (No. 4)	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C11	Erosion & Sediment Control Plan	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C12	Erosion and Sediment Control Notes	ACOR Consultants (CC) Pty Ltd	G	18/09/20
CC180535C13	Erosion & Sediment Control Detail Sheet	ACOR Consultants (CC) Pty Ltd	G	18/09/20
DOCUMENT		AUTHOR	REV	DATE
BASIX Certificate No. 1013069M_05		Senica Consultancy Group Pty Ltd	-	18 September 2020
Site Waste Minimisation and Operational Waste Management Plan		Senica Consultancy Group Pty Ltd	-	18 September 2020

2. The appeal is upheld.

3. Development Application No. DA94/2019 for the demolition of existing structures, removal of 22 trees, construction of a 5 storey residential flat building containing 37 apartments (5 x 1 bedroom, 27 x 2 bedroom and 5 x 3 bedroom) over 2 levels    of basement car parking containing 65 car parking spaces, 5 motorcycle spaces and 15 bicycle spaces and associated landscaping and stormwater works on the land at 640-646 Mowbray Road, Lane Cove North is approved subject to the conditions of consent annexed hereto and marked “B”.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (188834, pdf)

Annexure B (373246, pdf)

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Decision last updated: 06 October 2020