TLB Trading Pty Ltd v Mosman Municipal Council

[2020] NSWLEC 1420

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

TLB Trading Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1420

Hearing dates:

Conciliation conference on 28 August 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – See [12]

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Mosman Local Environmental Plan 2012

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

TLB Trading Pty Ltd (Applicant)
Mosman Council (Respondent)

Representation:

Counsel:
E Fleming (Solicitor) (Applicant)
R McCulloch (Solicitor) (Respondent)

Solicitors:
Swaab Attorneys (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2020/94213

Publication restriction:

No

Judgment

1. COMMISSIONER: TLB Trading Pty Ltd (the Applicant) has appealed the refusal by Mosman Council (the Respondent) of its modification application 8.2017.232.2 seeking approval for amendments to an approved but yet to be constructed residential development with four strata title units with basement car parking (the approved development) at 4 Parriwi Road, Mosman (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.56(1) of the EP&A Act as the original consent for the Proposed Development’s DA 8.2017.232.1 was granted by the Court.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 28 August 2020, and I presided over that conciliation conference.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy, and no site view was undertaken during the conference.

6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

7. 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.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. the modification application that is the subject of this appeal was made pursuant to the provisions of s 4.56(1) of the EP&A Act, and in relation to this the Parties have advised that on the basis of the terms of their agreement:

1. 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 (if at all);

2. the modification application has been notified in accordance with the Environmental Planning and Assessment Regulation 2000;

3. it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person; and

4. three submissions were received in response to the Respondent’s notification of the modification application, which the Respondent has considered in entering into the s34 agreement with the Applicant.

2. the Respondent advised that a further four submissions had been prepared by resident objectors in relation to the proposed modification application, and these were provided to the Court under its COVID-19 Arrangements Policy. Those submissions raised concerns in relation to the bulk, scale, height, floor space ratio, location of external air conditioning units, excavation, set-backs, potential amenity, including noise and air quality, impacts and community welfare. The Respondent is satisfied, and I accept, that the matters raised by the objectors have been considered during the s34 conciliation conference.

9. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.56(1) of the EP&A Act have been so satisfied.

10. I am further 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.

11. 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.

12. The Court orders that:

1. The Applicant is granted leave to amend its application to rely upon the following amended plans and documents (plans contained at Annexure A):

Drawing Nos.	Date of drawing	Prepared by
LEC 101 to 105 inclusive (issue C)	13 August 2020	Cracknell & Lonergan
LEC 201 and 202 (issue D)	28 August 2020	Cracknell & Lonergan
LEC 301 to 303 (issue D)	28 August 2020	Cracknell & Lonergan
LEC 401 and 501 to 502 (issue C)	13 August 2020	Cracknell & Lonergan
Landscape Plan – Ground Floor LPS4 18 – 108 page 1 (issue E)	31 August 2020	Conzept Landscape Architects
Landscape Plan – First and Second Floor LPS4 18 – 108 Page 1 (issue E)	31 August 2020	Conzept Landscape Architects
Landscape Plan – Specification & Detail Flor LPS4 18 – 108 Page 3 (issue D)	31 August 2020	Conzept Landscape Architects
SMP 01 – 07 (Issue B)	August 2020	MCA Consulting Engineers
Access Report	14 August 2020		Lindsay Perry Access
Access Addendum	27.08.20		Lindsay Perry Access

2. The appeal is upheld.

3. Modification Application No. 8.2017.232.2 is approved.

4. Development Application 8.2017.232.1, approved by the Land and Environment Court in Land and Environment Court Proceedings No. 18/136753 on 18 January 2019 for the demolition of the exiting dwelling and the construction of a three storey residential flat building with basement car parking and landscaping work on land known as 4 Parriwi Road, Mosman (legally described as Lot 1 DP1094676 and Lot 16 DP3601), is modified in accordance with the approved plans and is subject to the conditions of consent as set out in Annexure B.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (5763512, pdf)

Annexure B (314920, pdf)

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Amendments

30 November 2020 - Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), the judgment made by this Court on 30 November 2020 in TLB Trading Pty Ltd v Mosman Municipal Council (No 2) [2020] NSWLEC 1591 is amended by deletion of paragraph [8(3)].

Decision last updated: 30 November 2020