Wilson Planning Pty Ltd v Newcastle City Council

[2020] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wilson Planning Pty Ltd v Newcastle City Council [2020] NSWLEC 1073
Hearing dates:	Conciliation conference on 12 February 2020
Date of orders:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely upon the Amended Plan of Management, Revision 2 Dated November 2019. (2)   The appeal is upheld. (3)   Development Application DA2018/00815 for change of use to a function centre, including alterations and additions, at 3 Cowper Street, Carrington is approved subject to conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – change of use – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Coastal Protection) 2018 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Wilson Planning Pty Ltd (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: S Nevin (Solicitor) (Applicant) J Smith (Respondent)   Solicitors: Sparke Helmore Lawyers (Applicant) Newcastle City Council (Respondent)
File Number(s):	2019/184212
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the refusal of its development application DA/2018/00815. The development application seeks consent for the change of use of an existing shop to a function centre, along with alterations and additions. The development is proposed at 3 Cowper Street North, Carrington.

2. On 1 August 2018, the Applicant lodged a development application with Newcastle City Council. The Council refused the development application on 14 December 2018; the Applicant is appealing that refusal.

3. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 12 February 2020. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

4. Following the conciliation, 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 would be acceptable to them. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

5. 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 have formed this state of satisfaction for the following reasons:

1. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application.

2. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), I have given consideration to the potential contamination of the land. I accept the parties’ agreement that the land is not contaminated within the meaning of cl 7 of SEPP 55.

3. The subject site is within the ‘Coastal Use Area’ as defined by State Environmental Planning Policy (Coastal Protection) 2018. I am satisfied that the preconditions in cl 14,15 and 16 are met by the proposal on the following grounds:

• The site is not near a foreshore, beach, headland or rock platform and will have no impact on public access to these features.

• The proposed development will not impact on views from public places or foreshores or result in their overshadowing.

• The proposal will not have a detrimental impact on visual amenity, scenic quality or aboriginal heritage and places.

• The proposal will not impact the surf zone or the coastal zone or impact on coastal processes.

• There is no proposed change to the form, bulk, scale or size of the existing building.

4. The site is subject to the provisions of the Newcastle Local Environmental Plan 2012 (LEP 2012) and is zoned B2 Local Centre. Function centres are a permissible use with consent.

5. The development standards for height and floor space ratio in LEP 2012 are not exceeded by the proposed development.

6. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

6. 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is granted leave to rely upon the Amended Plan of Management, Revision 2 Dated November 2019.

2. The appeal is upheld.

3. Development Application DA2018/00815 for change of use to a function centre, including alterations and additions, at 3 Cowper Street, Carrington is approved subject to conditions in Annexure ‘A’.

…………………………

D M Dickson

Commissioner of the Court

Amended Plan of Management (7.21 MB)

Annexure A (72.7 KB)

**********

Decision last updated: 26 February 2020