Studio Make Made v Mosman Municipal Council

[2019] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation:	Studio Make Made v Mosman Municipal Council [2019] NSWLEC 1023
Hearing dates:	Conciliation conference on 15-16 January 2019
Date of orders:	22 January 2019
Decision date:	22 January 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [8] 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 Mosman Local Environmental Plan 2012 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Studio Make Made (Applicant) Mosman Municipal Council (Respondent)
Representation:	Solicitors: D Briggs, D G Briggs & Associates (Applicant) R McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2018/123690
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 Act1979 (EPA Act) against the Respondent’s refusal of development application No 8.2017.142.1 (DA) for demolition of the existing dwelling, construction of a new dwelling, landscaping and associated works at 17A Awaba Street, Mosman (site).

2. The appeal was subject to mandatory conciliation in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 – 16 January 2019. I presided over the conciliation conference.

3. After the conciliation conference, and based on amended plans seen to address the Respondent’s contentions, 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. 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There can be jurisdictional prerequisites that need to be satisfied before this function can be exercised.

5. In this instance, the parties indicated that no particular jurisdictional prerequisites apply, noting that the amended plans now comply with relevant development standards contained in Mosman Local Environmental Plan 2012. State Environmental Planning Policy No 55 – Remediation of Land applies to the site. It was indicated that, pursuant to clause 7(1)(a) of that Policy, Council gave consideration to whether the land was contaminated. The site had been used for residential purposes and had no history to suggest that it might be contaminated. I agree with Council’s conclusion that no further consideration under clause 7(1)(b) or (c) of the Policy was required.

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 Court orders:

1. The Applicant is granted leave to amend the development application to rely upon the amended architectural plans and stormwater plans referred to in condition 1 of Annexure A.

2. The Appeal is upheld.

3. Development Application No. 8.2017.142.1 for the demolition of the existing dwelling and the construction of a new dwelling with integrated garage and landscaping work at 17A Awaba Street, Mosman is approved subject to the conditions in Annexure A.

……………………………….

P Walsh

Commissioner of the Court

Annexure A

s34 plans

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Decision last updated: 25 January 2019