TLB Trading Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1420

Land and Environment Court New South Wales

Medium Neutral Citation: TLB Trading Pty Ltd v Mosman Municipal Council [2020] NSWLEC 1420 Hearing dates: Conciliation conference on 28 August 2020 Date of orders: 24 September 2020 Decision date: 24 September 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – See [12] Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Mosman Local Environmental Plan 2012 Texts Cited: Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020) Category: Principal judgment Parties: TLB Trading Pty Ltd (Applicant) Mosman Council (Respondent) Representation: Counsel: E Fleming (Solicitor) (Applicant) R McCulloch (Solicitor) (Respondent)

Solicitors: Swaab Attorneys (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 2020/94213 Publication restriction: No

Judgment 1. COMMISSIONER: TLB Trading Pty Ltd (the Applicant) has appealed the refusal by Mosman Council (the Respondent) of its modification application 8.2017.232.2 seeking approval for amendments to an approved but yet to be constructed residential development with four strata title units with basement car parking (the approved development) at 4 Parriwi Road, Mosman (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. 3. These proceedings are determined pursuant to the provisions of s 4.56(1) of the EP&A Act as the original consent for the Proposed Development's DA 8.2017.232.1 was granted by the Court. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 28 August 2020, and I presided over that conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy, and no site view was undertaken during the conference. 6. 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 Applicant's development application, subject to conditions. 7. 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. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows: 1. the modification application that is the subject of this appeal was made pursuant to the provisions of s 4.56(1) of the EP&A Act, and in relation to this the Parties have advised that on the basis of the terms of their agreement: 1. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all); 2. the modification application has been notified in accordance with the Environmental Planning and Assessment Regulation 2000; 3. it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person; and 4. three submissions were received in response to the Respondent's notification of the modification application, which the Respondent has considered in entering into the s34 agreement with the Applicant. 1. the Respondent advised that a further four submissions had been prepared by resident objectors in relation to the proposed modification application, and these were provided to the Court under its COVID-19 Arrangements Policy. Those submissions raised concerns in relation to the bulk, scale, height, floor space ratio, location of external air conditioning units, excavation, set-backs, potential amenity, including noise and air quality, impacts and community welfare. The Respondent is satisfied, and I accept, that the matters raised by the objectors have been considered during the s34 conciliation conference. 1. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.56(1) of the EP&A Act have been so satisfied. 2. I am further 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. 3. 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. 4. The Court orders that: 1. The Applicant is granted leave to amend its application to rely upon the following amended plans and documents (plans contained at Annexure A): Drawing Nos. Date of drawing Prepared by LEC 101 to 105 inclusive (issue C) 13 August 2020 Cracknell & Lonergan LEC 201 and 202 (issue D) 28 August 2020 Cracknell & Lonergan LEC 301 to 303 (issue D) 28 August 2020 Cracknell & Lonergan LEC 401 and 501 to 502 (issue C) 13 August 2020 Cracknell & Lonergan Landscape Plan – Ground Floor LPS4 18 – 108 page 1 (issue E) 31 August 2020 Conzept Landscape Architects Landscape Plan – First and Second Floor LPS4 18 – 108 Page 1 (issue E) 31 August 2020 Conzept Landscape Architects Landscape Plan – Specification & Detail Flor LPS4 18 – 108 Page 3 (issue D) 31 August 2020 Conzept Landscape Architects SMP 01 – 07 (Issue B) August 2020 MCA Consulting Engineers Access Report 14 August 2020 Lindsay Perry Access Access Addendum 27.08.20 Lindsay Perry Access