Verani 1888 Pty Ltd v Strathfield Municipal Council

[2019] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation:	Verani 1888 Pty Ltd v Strathfield Municipal Council [2019] NSWLEC 1519
Hearing dates:	Conciliation conference on 25 October 2019
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on the amended plans as referred to in condition 1.1 of Annexure ‘A’ for the purpose of the modification application. (2) The appeal is upheld. (3) Modification Application 2015/056/2 which seeks consent for removal of two basement car park levels and relocation of parking to ground level, removal of a lift, internal adjustments to room mix and configurations, minor external alterations to materials, colours and finishes, window framing and landscaping at 24 Homebush Road, Strathfield is approved and development consent DA2015/056 is now subject to the conditions contained in Annexure ‘A’. (4) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans, in the amount of $4,000.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Verani 888 Pty Ltd (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: C Marginson (Solicitor) (Applicant) T White (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Norton Rose Fulbright Australia (Respondent)
File Number(s):	2018/306790
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns an application to modify the development consent for the retention of an existing heritage building at 24 Homebush Road, Strathfield and the construction of a four storey boarding house with basement car parking over two split levels. The modification application seeks to delete the basement car parking and provide it on the ground level, with a reduction in the number of boarding rooms and occupants. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(1) of the EPA Act. The final orders in this appeal, outlined in [6] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 25 October 2019. I presided over the conciliation conference.

3. At the conciliation conference, 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. The decision agreed upon is for the grant of the modification application and the consequent amendment to the conditions the subject of the consent, pursuant to s 4.56(1) of the EPA Act. 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons:

• Qualitatively, the proposal results in a boarding house comprised of the heritage building and the four storey building, consistent with the building approved by the development consent. The basement car parking is not an essential physical element of the approved development and its deletion does not significantly qualitatively change the proposed development.

• Quantitatively, the modifications relate to changes to the internal layout, a small reduction in the number of boarding rooms and occupants, and a change to the location of the car parking. These changes are not quantitatively of sufficient significance to render the development as modified something that is not substantially the same as that for which consent was granted.

4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.

6. The Court orders that:

1. The Applicant is granted leave to rely on the amended plans as referred to in condition 1.1 of Annexure ‘A’ for the purpose of the modification application.

2. The appeal is upheld.

3. Modification Application 2015/056/2 which seeks consent for removal of two basement car park levels and relocation of parking to ground level, removal of a lift, internal adjustments to room mix and configurations, minor external alterations to materials, colours and finishes, window framing and landscaping at 24 Homebush Road, Strathfield is approved and development consent DA2015/056 is now subject to the conditions contained in Annexure ‘A’.

4. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans, in the amount of $4,000.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (591 KB)

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Decision last updated: 30 October 2019