Stepping Stone Proprietary Limited v Northern Beaches Council

[2018] NSWLEC 1638

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Stepping Stone Proprietary Limited v Northern Beaches Council [2018] NSWLEC 1638
Hearing dates:	Conciliation conference on 6 & 7 December 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	See orders at [10] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Stepping Stone Proprietary Limited (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) T To (Respondent) Solicitors: Hartley Solicitors (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2017/387729
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Stepping Stone Proprietary Limited (applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the refusal by Northern Beaches Council of a Development Application that proposed alterations and additions to an existing building, use as a dual occupancy (attached) and 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 has been held on 6 and 7 December 2018. I have presided over the conciliation conference.

3. 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. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EP&A Act.

4. That agreement was based on amended plans prepared by the applicant which, according to the council’s experts, addressed the contentions in the case. Those plans reduced the height of the building, the location of the proposed upper floor, the scale of works within the front setback area and other modifications suggested by the council’s expert.

5. The application is also accompanied by two written requests that seek to vary development standards for building height and floor space ratio (FSR) pursuant to the provisions of cl 4.6 of Manly Local Environmental Plan 2013 (LEP). The council is satisfied that the objections are well founded and the requirements of cl 4.6 are met.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

7. I have formed this state of satisfaction because the development is permissible in the R1 Zone, I accept the agreed position of the planning experts that the amended plans satisfactorily address view impacts and in fact open up views, a matter also raised by persons who made submissions in relation to the application. Conditions of consent have been imposed that reflect those impacts and ensures appropriate landscaping.

8. The Court is satisfied that the applicant’s written request seeking to justify the contravention of development standards for building height and FSR in the LEP has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP and that the proposed development would be in the public interest because it is consistent with the objectives of the particular standards and the objectives for development within the R1 Zone in which the development is proposed to be carried out.

9. 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.

10. The orders of the Court are:

1. The applicant is granted leave to amend the application and rely on the plans listed under Condition 1 below the heading ‘The development must be carried out in accordance with plans and details listed below:’ in Annexure ‘A’.

2. The clause 4.6 requests seeking to vary the development standards within clauses 4.3 and 4.4 of the Manly Local Environmental Plan 2013 prepared by ABC planning is upheld.

3. The appeal is upheld; and

4. Development application number DA326/2016 for alterations and additions to the existing building and use as a dual occupancy (attached) and strata subdivision is approved subject to the conditions in Annexure ‘A’.

……………………….

S Morris

Acting Commissioner of the Court

Annexure A (87.2 KB, pdf)

Plan - 79A Lauderdale Ave Fairlight - Lauderdale-181207-V9 (3.12 MB, pdf)

Plan - VIEW FROM 72 LAUDERDALE (893 KB, pdf)

Amendments

11 December 2018 - Correction to typographical error in "Representation" on Cover Sheet