Land and Environment Court New South Wales Medium Neutral Citation: Australian Islamic Cultural Centre Inc v Cumberland Council [2021] NSWLEC 1224 Hearing dates: Conciliation conference on 23 April 2021 Date of orders: 5 May 2021 Decision date: 05 May 2021 Jurisdiction: Class 1 Before: Gray C Decision: Refer to orders below at [7] Catchwords: APPEAL – modification application – updated Operational Plan of Management – conciliation conference – agreement reached – orders made Legislation Cited: Environment Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Australian Islamic Cultural Centre Inc (Applicant) Cumberland Council (Respondent) Representation: Counsel: R White (Applicant) A Hemmings (Respondent) Solicitors: Mills Oakley (Applicant) Cumberland Council (Respondent) File Number(s): 2021/59280 Publication restriction: Nil JUDGMENT 1. COMMISSIONER: This appeal concerns a modification application to update the Operational Plan of Management and vary conditions of development consent with respect to the operating hours and parking arrangements for a place of public worship at 43-47 Harrow Road, Auburn. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 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 23 April 2021. I presided over the conciliation conference. 3. Following the conciliation conference, 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 was acceptable to the parties. The signed agreement was filed on 27 April 2021, and the decision agreed upon is for the grant of the modification application subject to a 12-month trial period for certain hours of operation detailed in condition 129.2 of Annexure A to the orders. 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 form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that it modifies operational aspects of the place of public worship, and does not change any essential element of the approved development. 4. The modification application was notified by Council between 15 to 29 January 2021 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one submission was received. I have considered the issues raised in that submission. 5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 7. The Court orders that: 1. The Applicant is granted leave to amend its development application to rely upon the Operational Plan of Management dated 23 April 2021. 2. The appeal is upheld. 3. Modification Application No. MOD2020/0436 to modify Development Consent No. 398/2008 for the purposes of a place of public worship, library and youth/cultural centre at 43-47 Harrow Road, Auburn is determined by approving the modifications as set out in Annexure A. 4. As a consequence of order (3), Development Consent No 398/2008 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ………………………. J Gray Commissioner of the Court Annexure A (176786, pdf) Annexure B (589458, 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: 05 May 2021