Wollert Holdings P/L v Cumberland Council

[2018] NSWLEC 1654

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wollert Holdings P/L v Cumberland Council [2018] NSWLEC 1654
Hearing dates:	Conciliation conference on 17 December 2018
Date of orders:	17 December 2018
Decision date:	17 December 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See [9] 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:	Wollert Holdings P/L (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) L Newcombe, Storey & Gough (Respondent)
File Number(s):	2018/122069
Publication restriction:	No

Judgment

1. COMMISSIONER: Wollert Holdings P/L (the Applicant) has appealed the decision of Cumberland Council (the Respondent) to refuse its development application (DEV-59/2018) for construction of an additional storey upon an approved and existing six storey residential flat building at 39-43 William St, Granville (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction. These proceedings are determined pursuant to the provisions of s 4.16 of the EPA Act.

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 has been held on 17 December 2018, and I have 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. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised

7. 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.

8. 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.

9. The Court orders:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings:

Plan Number	Prepared By	Revision No.	Dated
Level 06 Plan – A1209	Ghazi AL ALI	C	7/11/2018
Roof Plan – A1210	Ghazi AL ALI	D	6/12/2018
Communal Open Space/Ground Floor Plan – A1054	Ghazi AL ALI	B	7/11/2018
North & West Elevations – A1500	Ghazi AL ALI	D	6/12/2018
South & East Elevations – A1501	Ghazi AL ALI	D	6/12/2018
Section A-A – A1700	Ghazi AL ALI	D	6/12/2018
Section B-B – A1701	Ghazi AL ALI	D	6/12/2018

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amended development application pursuant to s. 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development application DA-59/2018 seeking approval for the Construction of a seventh storey comprising an additional apartment and alterations to the communal open space is approved subject to the conditions in Annexure A.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (225 KB, pdf)