Switaj v Wollongong City Council

[2019] NSWLEC 1334

Land and Environment Court

New South Wales

Medium Neutral Citation:	Switaj v Wollongong City Council [2019] NSWLEC 1334
Hearing dates:	Conciliation conference on 12 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders:  (1)   The Applicant is granted leave to rely on the following amended plans prepared by T & C Design Consultants: (a)   Drawing No. 00/11, dated 8 April 2019; (b)   Drawing No. 01/11, Revision 6, dated 8 April 2019; (c)   Drawing No. 1A/11, Revision 9, dated 8 April 2019; (d)   Drawing No. 1B/11, dated 8 April 2019; (e)   Drawing No. 1C/11, Revision 1, dated 23 February 2019; (f)   Drawing No. 1D/11, dated 2 April 2019; (g)   Drawing No. 02/11, Revision 8, dated 8 April 2019; (h)   Drawing No. 03/11, Revision 7, dated 8 April 2019; (i)   Drawing No. 04/11, Revision 7, dated 8 April 2019; (j)   Drawing No. 4A/11, Revision 5, dated 8 April 2019; (k)   Drawing No. 05/11, Revision 6, dated 8 April 2019; (l)   Drawing No. 06/11, Revision 4, dated 29 March 2019; (m)   Drawing No. 07/11, Revision 2, dated May 2018; (n)   Drawing No. 08/11, Revision 3, dated 8 April 2019; (o)   Drawing No. 09/11, Revision 1, dated February 2018; (p)   Drawing No. 10/11, dated November 2017; and (q)   Drawing No. 11/11, dated November 2017. (2)   The Applicant is granted leave to rely on the following amended stormwater plans prepared by Footprint Sustainable Engineering: (a)   Drawing No. 1714-C01, Revision 6, dated 10 April 2019; (b)   Drawing No. 1714-C02, Revision 6, dated 10 April 2019; and (c)   Drawing No. 1714-C03, Revision 6, dated 10 April 2019. (3)   The appeal is upheld. (4)   DA-2017/1719 for the construction of a residential dwelling house and two swimming pools and spa at 1A Norman Street, Mangerton NSW 2500 is determined by the grant of development consent, subject to the conditions at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – Residential dwelling – amended design – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Wollongong Local Environmental Plan 2009
Category:	Principal judgment
Parties:	Ted Michael Switaj (Applicant) Wollongong City Council (Respondent)
Representation:	Solicitors: C Ters, Hones Lawyers (Applicant) J Reilly, Wollongong City Council (Respondent)
File Number(s):	2018/359246
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by the Applicant against the actual refusal of its development application DA-2017/1719. The application seeks approval for a two storey dwelling house, a lap pool, swimming pool, spa and retaining walls. The development is proposed at 1A Norman Street, Mangerton (Lot 1 DP 617042).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 12 July 2019. Following the conciliation, 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The subject land is bushfire prone land and is integrated development under s 4.46 of the EPA Act. It was referred to the NSW Rural Fire Services who provided a Bushfire Safety Authority and concurrence conditions which are incorporated in the attached conditions.

2. Pursuant to Wollongong Local Environmental Plan 2009, the subject site is zoned R2 Low Density Residential. The proposed development is permissible with consent in the zone.

3. In compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been lodged (BASIX Certificate 885349S).

4. The original and amended applications were notified in accordance with the relevant development control plan and the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, 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.

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

1. The Applicant is granted leave to rely on the following amended plans prepared by T & C Design Consultants:

1. Drawing No. 00/11, dated 8 April 2019;

2. Drawing No. 01/11, Revision 6, dated 8 April 2019;

3. Drawing No. 1A/11, Revision 9, dated 8 April 2019;

4. Drawing No. 1B/11, dated 8 April 2019;

5. Drawing No. 1C/11, Revision 1, dated 23 February 2019;

6. Drawing No. 1D/11, dated 2 April 2019;

7. Drawing No. 02/11, Revision 8, dated 8 April 2019;

8. Drawing No. 03/11, Revision 7, dated 8 April 2019;

9. Drawing No. 04/11, Revision 7, dated 8 April 2019;

10. Drawing No. 4A/11, Revision 5, dated 8 April 2019;

11. Drawing No. 05/11, Revision 6, dated 8 April 2019;

12. Drawing No. 06/11, Revision 4, dated 29 March 2019;

13. Drawing No. 07/11, Revision 2, dated May 2018;

14. Drawing No. 08/11, Revision 3, dated 8 April 2019;

15. Drawing No. 09/11, Revision 1, dated February 2018;

16. Drawing No. 10/11, dated November 2017; and

17. Drawing No. 11/11, dated November 2017.

2. The Applicant is granted leave to rely on the following amended stormwater plans prepared by Footprint Sustainable Engineering:

1. Drawing No. 1714-C01, Revision 6, dated 10 April 2019;

2. Drawing No. 1714-C02, Revision 6, dated 10 April 2019; and

3. Drawing No. 1714-C03, Revision 6, dated 10 April 2019.

3. The appeal is upheld.

4. DA-2017/1719 for the construction of a residential dwelling house and two swimming pools and spa at 1A Norman Street, Mangerton NSW 2500 is determined by the grant of development consent, subject to the conditions at Annexure A.

……………………………

D M Dickson

Commissioner of the Court

Annexure A (220 KB, pdf)

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