Land and Environment Court New South Wales Medium Neutral Citation: Diro Group Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1316 Hearing dates: Conciliation conference on 21 July 2020 Date of orders: 04 August 2020 Decision date: 04 August 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Modification Application No. MA19/0415 is approved by deletion of Part 1 Condition 2. A copy of the consolidated conditions of consent is contained in Annexure 'A'. Catchwords: MODIFICATION APPLICATION – deletion of conditions – 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: Diro Group Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: J Amy (Solicitor) (Respondent) C Rose (Solicitor) (Applicant) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2020/40638 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal of its Modification Application MA19/0415. The Modification Application seeks the deletion of a group of conditions of consent imposed in the original consent. The original consent (DA/18/0377) granted approval for the construction of three townhouses and a villa at 33 Oleander Parade, Caringbah South (Lot D DP 445280). 2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.55 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 21 July 2020. 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 decision agreed upon is to uphold the appeal and to grant the modification, pursuant to s 4.55(1A) of the EPA Act. 4. 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. I am satisfied that the proposed modification is of minimal environmental impact, 2. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, 3. The application has been notified in accordance with the relevant development control plan and the submissions have been considered. 1. 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. 2. 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. 3. The Court orders that: 1. The appeal is upheld. 2. Modification Application No. MA19/0415 is approved by deletion of Part 1 Condition 2. A copy of the consolidated conditions of consent is contained in Annexure 'A'. ………………………. D M Dickson Commissioner of the Court Annexure A: Consent Conditions DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2020