Land and Environment Court New South Wales Medium Neutral Citation: Sandhub Pty Ltd v Strathfield Council [2020] NSWLEC 1570 Hearing dates: Conciliation conference on 16 November 2020 Date of orders: 18 November 2020 Decision date: 18 November 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: See final orders at [8] below Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Strathfield Local Environmental Plan 2012 Category: Principal judgment Parties: Sandhub Pty Ltd (Applicant) Strathfield Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) C Sorensen (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Hall & Wilcox (Respondent) File Number(s): 2019/50203 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal is made pursuant to the provisions of s 4.55 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). It arises from the Council's refusal of an application to modify condition 30 of development consent no. DA 06/109. The development consent approved the use of premises at 6-8 Dunlop Street, Strathfield South as a joinery works and builders' yard with limited truck movements to and from the site on any day to a maximum of 24. The present application seeks to increase the maximum truck movements to and from the site on any day to 100. 2. The background facts are detailed in the Council's Statement of Facts and Contentions (SOFC) dated 6 July 2020 and the Applicant's Statement in Reply. Relevantly, the SOFC records that under the Strathfield Local Environmental Plan 2012: 1. the site is zoned IN1 General Industrial; 2. the proposal is permitted in the zone with consent as 'landscaping material supplies'; 3. the use is not an existing use; and 4. the site has a total area of 8,307m2. 1. Pursuant to the EPA Act (s 4.55(2)), the parties agree that the proposal is substantially the same development as the development for which the consent was originally granted. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 16 November 2020. I presided over the conciliation conference. 3. 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 application based on amended plans, the operational plan of management dated 21 October 2020 and agreed conditions (Annexure A). 4. 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 4.55(2) of the EPA Act to grant consent to the modification of the original consent. At the conference the parties addressed the jurisdictional prerequisites that I need to be satisfied about in order to grant consent in a short jurisdictional statement. They also provided me with supplementary documentation which included a revised Operational Plan of Management dated 21 October 2020, Air Quality Management Report prepared by ERM dated 6 October 2020 and Amended Site plan prepared by Blu Print Designs dated 12 October 2020. 5. After a comparison of the development as modification with the original consent before any modification I am satisfied that the development is substantially the same development as the development for which consent was originally granted. Therefore, as there is no jurisdictional impediment to the grant of consent, s 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties' decision. 6. Accordingly, the Court orders that: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents: Plan Name Drawing number Revision Date Prepared by Architectural plans Site Plan LEC01 J 12 October 2020 Blue Print Designs Reports Amended Plan of Management prepared by Planzone dated 21 October 2020 Air Quality Management Plan prepared by ERM dated 6 October 2020 1. The appeal is upheld. 2. Modification application no. DA/1996/109/2 to modify condition 30 of development consent DA/1996/109 to increase the amount of daily truck movements to and from the site to 100 at 6-8 Dunlop Street, South Strathfield is approved, subject to conditions contained in Annexure A. 1. The Court notes that the parties agree that the amendments are minor for the purposes of s 8.15(3) of the Environmental Planning and Assessment Act 1979. ……………………………… S Dixon Senior Commissioner of the Court Annexure A (155334, 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: 18 November 2020