Wehbi v Bayside Council

[2020] NSWLEC 1002

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wehbi v Bayside Council [2020] NSWLEC 1002
Hearing dates:	Conciliation conference on 20 December 2019
Date of orders:	07 January 2020
Decision date:	07 January 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See orders [10] below
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:	Mohamad Wehbi (Applicant) Bayside Council (Respondent)
Representation:	Counsel: M Sonter (Solicitor) (Applicant) A Epstein (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/76005
Publication restriction:	No

Judgment

1. COMMISSIONER: Mohamad Wehbi (the Applicant) has appealed the refusal by Bayside Council (the Respondent) of his development application (DA 2017/514) which sought consent for the demolition of existing structure, the subdivision of land into two lots and construction of two dwellings on each lot. (the Proposed Development), at 61 Illife St, Bexley (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction.

3. 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 20 December 2019, and 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. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions.

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 development application.

6. The parties have explained how the Applicant’s amended plans had satisfied relevant jurisdictional matters, including in relation to the zoning of the land, and development standards pertaining to the maximum permitted floor space ratio and minimum lot size, and the compliance of the Applicant’s proposed development, as amended, with those standards.

7. The parties have further explained how their contentions in this matter have been resolved by the Applicant’s amended plans, and I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EP&A Act can be exercised by the Court.

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.

9. 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.

10. The Court orders:

1. Leave is granted to the Applicant to rely upon the following amended plans and documents, which are attached to this agreement and marked Annexure "A":

Description	Reference No.	Date	Revision	Prepared by
Architectural plans
Proposed site plan	2.1.6	18/11/2019	06	Planzone
Setback Plan	2.1.7	18/11/2019	06	Planzone
Driveway Grades	2.1.8	18/11/2019	06	Planzone
Site Plan – Stage 1	2.2.1	18/11/2019	06	Planzone
FSR Calculations Stage 1	2.2.2	18/11/2019	06	Planzone
Ground Floor Plan – Stage 1	2.2.3	18/11/2019	06	Planzone
Ground Floor Detail – Stage 1	2.2.4	18/11/2019	06	Planzone
Roof Plan – Stage 1	2.2.5	18/11/2019	06	Planzone
Northern Elevation – Stage 1	2.2.6	18/11/2019	06	Planzone
Southern Elevation – Stage 1	2.2.7	18/11/2019	06	Planzone
Eastern Elevation - Stage 1	2.2.8	18/11/2019	06	Planzone
Western Elevation – Stage 1	2.2.9	18/11/2019	06	Planzone
Section – Stage 1	2.2.10	18/11/2019	06	Planzone
Driveway and Retaining Wall Section	2.2.11	18/11/2019	06	Planzone
Schedule and Finishes – Stage 1	2.2.12	18/11/2019	06	Planzone
Site plan – Stage 2	2.3.1	18/11/2019	06	Planzone
FSR Calculations – Stage 2	2.3.2	18/11/2019	06	Planzone
Ground Floor Plan – Stage 2	2.3.3	18/11/2019	06	Planzone
Ground Floor Detail – Stage 2	2.3.4	18/11/2019	06	Planzone
First Floor Plan – Stage 2	2.3.5	18/11/2019	06	Planzone
First Floor Detail – Stage 2	2.3.6	18/11/2019	06	Planzone
Roof Plan – Stage 2	2.3.7	18/11/2019	06	Planzone
Elevation – Lot 3 – North and South	2.3.8	18/11/2019	06	Planzone
Elevation – Lot 3 – East and West	2.3.9	18/11/2019	06	Planzone
Elevation – Lot 4 – North and South	2.3.10	18/11/2019	06	Planzone
Elevation – Lot 4 – East and West	2.3.11	18/11/2019	06	Planzone
Elevation Stage 2 – N & S	2.3.12	18/11/2019	06	Planzone
Section – Lot 2 & 3 Longitudinal	2.3.13	18/11/2019	06	Planzone
Section – Lot 2 & 3 Cross Section	2.3.14	18/11/2019	06	Planzone
Schedule & Finishes – Stage 2	2.3.15	18/11/2019	06	Planzone
Streetscape Elevation - Stage 2	2.3.16	18/11/2019	06	Planzone
Ground Floor Plan	2.4.3	18/11/2019	06	Planzone
First Floor Plan	2.4.4	18/11/2019	06	Planzone
Roof Plan	2.4.5	18/11/2019	06	Planzone
Elevation – North & South	2.4.6	18/11/2019	06	Planzone
Subdivision plans
Stage 1 – Subdivision	2.1.10	4/12/2019	7	Planzone
Stage 2 – Subdivision	2.1.11	4/12/19	7	Planzone
Landscape Plans
Landscape Plan	17­3553 L01	22/11/19	B	Zenith Landscape Designs Pty Ltd
Landscape Plan	17­3553 L02	22/11/19	B	Zenith Landscape Designs Pty Ltd
Landscape Plan	17­3553 L03	22/11/19	B	Zenith Landscape Designs Pty Ltd
Landscape Plan	17­3553 L04	22/11/19	B	Zenith Landscape Designs Pty Ltd
Landscape Plan	17­3553 L05	22/11/19	B	Zenith Landscape Designs Pty Ltd
Civil Engineering Plans
General Plan	SW-00	20/11/2019	A	Statiker
Drainage Plan	SW-01	20/11/2019	A	Statiker
OSD Catchment Plan	SW-02	20/11/2019	A	Statiker
Stormwater Plan	SW-03	20/11/2019	A	Statiker
Stormwater Plan	SW-04	20/11/2019	A	Statiker
Sediment Control Plan	SW-05	20/11/2019	A	Statiker

2. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application in the amount of $16,800.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days.

3. The appeal is upheld.

4. Development Application DA-2017/514 for the demolition of existing structures, the subdivision of the existing lot into two individual lots and construction of 2 x dual occupancies and a further subdivision to create 3 lots at 61 Iliffe St, Bexley is approved subject to the conditions contained in Annexure “B” hereto.

………………………

M Chilcott

Commissioner of the Court

Annexure A (10.2 MB, pdf)

Annexure B (161 KB, pdf)

**********

Decision last updated: 09 January 2020