Tricon Management Group Pty Ltd v Waverley Council

[2019] NSWLEC 1526

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tricon Management Group Pty Ltd v Waverley Council [2019] NSWLEC 1526
Hearing dates:	Conciliation conference on 9 September 2019; 21 October 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Class 1
Before:	Blakely AC
Decision:	The Court orders: (1) Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure “A”. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum $10,000 within 28 days of these orders. (3) The appeal is upheld. (4) Development Consent be granted to DA-66/2019 seeking consent for the demolition of a building at 8-10 Council Street and the partial demolition of a building at 27 Paul Street and construction of a two and three storey affordable housing development with a total of 18 units and basement parking., subject to the conditions of consent in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – affordable housing – 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 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 Waverley Local Environmental Plan 2012
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Tricon Management Group Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: A Pascale (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Hunter Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/140932
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Tricon against Waverley Council to construct affordable housing units for 18 residents (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Waverley Council of development application DA 191/2017A (the application).

2. The application seeks consent under the EPA Act for demolition of existing structures on Council Street and modification of the heritage house area facing Paul Street across the street from the Waverley Council Chambers. The request is to modify an earlier approval by doing some re-design and configurations to meet certain Council requirements and address neighbour issues. The modifications are the contentions for this denial under the Waverley Local Environmental Plan 2012 (LEP 2012) and the Waverley Development Control Plan 2012.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties on 9 September 2019 and 21 October 2019.

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. At the conciliation conference, the Council raised several contentions which the Council considered, such as the overall length of the building on a long lot (illustrated below), and how the two structure interface as well as on and off street parking, overshadowing and privacy issues combined with the noise that emanates from a facility of this size located in a quiet residential neighbourhood. The narrow location combined with trees and heritage areas shown below presents the challenge of delivering a suitable project for a constrained site illustrated (below).

5. The issues raised regarding the irregularity of the site were largely addressed through a reduction in size and new approaches to parking, along with improved architectural alteration. These changes helped in tree preservation and improved the design.

6. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all the preconditions to the granting of consent have been met.

7. The LEC Act also requires me to set out in writing the terms of the decision (s 34(3)(b)). The orders made to give effect to the agreement meet that requirement.

8. 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. The Council has the authority under LEP 2012 to enter into this agreement based on the agreements reached in [4] above.

9. 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. Consequently, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. 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.

11. The Court orders:

1. Leave is granted for the Applicant to rely on the amended plans and documents referred to in condition 1 of the conditions of consent at Annexure “A”.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum $10,000 within 28 days of these orders.

3. The appeal is upheld.

4. Development Consent be granted to DA-66/2019 seeking consent for the demolition of a building at 8-10 Council Street and the partial demolition of a building at 27 Paul Street and construction of a two and three storey affordable housing development with a total of 18 units and basement parking., subject to the conditions of consent in Annexure “A”.

……………………….

E Blakely

Acting Commissioner of the Court

Annexure A (666 KB)

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Decision last updated: 01 November 2019