Land and Environment Court New South Wales Medium Neutral Citation: Staldone Turramurra Pty Ltd v Lane Cove Council [2020] NSWLEC 1468 Hearing dates: Conciliation conference on 21 September 2020 Date of orders: 06 October 2020 Decision date: 06 October 2020 Jurisdiction: Class 1 Before: Clay AC Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION – demolition of existing improvements and construction of a residential flat building – conciliation – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Staldone Turramurra Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Corradini-Bird (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2019/309223 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of a Development Application No. DA94/2019 for the demolition of existing structures, removal of 22 trees, construction of a 5 storey residential flat building containing 37 apartments (5 x 1 bedroom, 27 x 2 bedroom and 5 x 3 bedroom) over 2 levels of basement car parking containing 65 car parking spaces, 5 motorcycle spaces and 15 bicycle spaces and associated landscaping and stormwater works on the land at 640-646 Mowbray Road, Lane Cove North (the site). 2. On 21 September 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). 3. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions. 4. An agreement pursuant to s 34 of the LEC Act was filed by the parties on 21 September 2020 giving effect to the agreement in principle. The parties agreed, as do I, that the amendments in respect of which leave is to be granted are minor and accordingly the provisions s 8.15(3) EPA Act do not apply. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions. 6. The parties' agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have provided to the Court a statement of the relevant jurisdictional prerequisites that they say are satisfied so this function can be exercised which is Annexure A hereto. I agree with the parties' conclusions for the reasons stated and on the basis of the documents referred to. 7. 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. 8. 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. 9. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans and documents: DWG NO. DESCRIPTION PREPARED BY REV DATE Cover Page Wolski Coppin Architecture 18/09/2020 DA01C Lower Basement Wolski Coppin Architecture C 03/09/2020 DA02F Basement Wolski Coppin Architecture F 16/09/2020 DA03D Ground Wolski Coppin Architecture D 16/09/2020 DA04D Typical Plans (L1, L2, L3 similar) Wolski Coppin Architecture D 16/09/2020 DA05C Level 4 Wolski Coppin Architecture C 16/09/2020 DA06C Roof & Site Plan Wolski Coppin Architecture C 16/09/2020 DA07B Section AA & Section BB Wolski Coppin Architecture B 16/09/2020 DA08B Driveway/Ramp Sections Wolski Coppin Architecture B 16/09/2020 DA09B Elevations 01 Wolski Coppin Architecture B 16/09/2020 DA10B Elevations 02 Wolski Coppin Architecture B 16/09/2020 F01A Finishes 1 Wolski Coppin Architecture A 14/05/2020 F02A Finishes 2 Wolski Coppin Architecture A 14/05/2020 69.20(19)/330'A' 1/2 Landscape Plan iScape Landscape Architecture A 18/09/20 69.20(19)/331'A"2/2 Low Water Use Planting Plan iScape Landscape Architecture A 18/09/20 CC180535C1 Cover Sheet & Notes ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C2 Stormwater Management Plan – Ground Floor Sheet 1 ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C3 Stormwater Management Plan – Ground Floor Sheet 2 ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C4 Stormwater Management Plan – Ground Floor Sheet 3 ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C5 Stormwater Management Plan – Basement ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C6 Stormwater Management Plan – Lower Basement ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C7 Stormwater Management Detail Sheet (No. 1) ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C8 Stormwater Management Detail Sheet (No. 2) ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C9 Stormwater Management Detail Sheet (No. 3) ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C10 Stormwater Management Detail Sheet (No. 4) ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C11 Erosion & Sediment Control Plan ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C12 Erosion and Sediment Control Notes ACOR Consultants (CC) Pty Ltd G 18/09/20 CC180535C13 Erosion & Sediment Control Detail Sheet ACOR Consultants (CC) Pty Ltd G 18/09/20 DOCUMENT AUTHOR REV DATE BASIX Certificate No. 1013069M_05 Senica Consultancy Group Pty Ltd - 18 September 2020 Site Waste Minimisation and Operational Waste Management Plan Senica Consultancy Group Pty Ltd - 18 September 2020 1. The appeal is upheld. 2. Development Application No. DA94/2019 for the demolition of existing structures, removal of 22 trees, construction of a 5 storey residential flat building containing 37 apartments (5 x 1 bedroom, 27 x 2 bedroom and 5 x 3 bedroom) over 2 levels of basement car parking containing 65 car parking spaces, 5 motorcycle spaces and 15 bicycle spaces and associated landscaping and stormwater works on the land at 640-646 Mowbray Road, Lane Cove North is approved subject to the conditions of consent annexed hereto and marked "B". ………………………… P Clay Acting Commissioner of the Court Annexure A (188834, pdf) Annexure B (373246, pdf) ********** 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: 06 October 2020