TL and TL Tradings Pty Ltd v Parramatta City Council

[2019] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation:	TL & TL Tradings Pty Ltd v Parramatta City Council [2019] NSWLEC 1372
Hearing dates:	Conciliation conference on 2 August 2019
Date of orders:	07 August 2019
Decision date:	07 August 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development consent DA/484/2009/C is further modified by approving the Modification Application, subject to the consolidated conditions of consent at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Boers v Parramatta City Council [2010] NSWLEC 1097
Texts Cited:	Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	TL & TL Tradings Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Solicitors: K Doyle, Mills Oakley (Applicant) B Lennox, Storey & Gough (Respondent)
File Number(s):	2019/83751
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a modification application made pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to the Court seeking to modify Development Consent DA/484/2009 (the development consent) granted by the Land and Environment Court on 4 May 2010 in proceedings 2009/10765 (Boers v Parramatta City Council [2010] NSWLEC 1097) for the use of an existing premises as a brothel and associated outcall/escort services at 45 George Street, Clyde.

2. The development consent was subject to a condition that limited the consent to a 2 year trial period and the original development consent has been modified a number of times to extend the validity of the consent by amending condition 2 of the development consent. The proposal seeks to amend the development consent by modifying condition 2 of the development consent, as follows:

“This consent is valid until 25 August 2019. A section 4.55 Application or fresh Development Application may be submitted to Council prior to the expiration of the two (2) year trial period seeking the continuation of the brothel use. This consent shall continue to operate beyond the expiration of the trial period until that application is finally determined (including the expiration of any appeal rights against Council’s determination).”

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 2 August 2019. I presided over the conciliation conference.

4. 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.

5. 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 modification application.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(1A) of the EPA Act. I am satisfied that the proposal is of minimal environmental impact and that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified, because the proposed modification does not change the development.

7. I accept Ms Lennox’s submission that Parramatta City Council (the Council) has not notified the modification application, as the Council is not required to notify the modification application pursuant to s A5.5.1 of the Parramatta Development Control Plan 2011 because the Council is satisfied that the application involves minimal environmental impact as no physical changes to the original consent are proposed. I am satisfied that the Council has fulfilled the functions imposed on a consent authority under s 4.55(1A)(c), as required by s 4.55(8) of the EPA Act.

Orders

8. The orders of the Court are:

1. The appeal is upheld.

2. Development consent DA/484/2009/C is further modified by approving the Modification Application, subject to the consolidated conditions of consent at Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (60.6 KB, pdf)

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Decision last updated: 07 August 2019