Land and Environment Court New South Wales Medium Neutral Citation: MBC Property Australia Nominees Pty Ltd v Sutherland Shire Council [2018] NSWLEC 133 Hearing dates: 22 August 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Jurisdiction: Class 1 Before: Pepper J Decision: See orders at [7]. Catchwords: DEVELOPMENT CONSENT: exercise of discretion to make consent orders in Class 1 appeal against deemed refusal of a development application – consent orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, s 8.15(3) Category: Principal judgment Parties: MBC Property Australia Nominees Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr C McFadzean (Applicant) Ms J Amy (Respondent) Solicitors: Swaab Attorneys (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2017/351673 Publication restriction: N/A Judgment Consent Orders Made to Resolve Class 1 Proceedings 1. This is a Class 1 appeal against the deemed refusal of DA 17/0418, for the demolition of existing structures and the construction of 13 three storey townhouses with ground level car parking and associated landscaping on Lots 5, 6 and 7 in DP 36423, known as 147-151 President Avenue Miranda ("the land"). 2. The matter has been resolved by consent orders drafted and filed by the parties in Court. Evidence in Support of Consent Orders 1. The applicant, MBC Property Australia Nominees Pty Ltd, tendered in Court: 1. a statement of agreed facts, dated 20 August 2018; 2. email correspondence between Ms Janelle Amy and Mr Colin McFadzean, between 21 and 22 August 2018, resolving the remaining issues in dispute and suggesting draft consent orders; 3. a statutory compliance report prepared by DPC for the land, dated 17 August 2018; 4. a solar access analysis report prepared by SLR Consulting Australia Pty Ltd for the land, dated August 2018; 5. Basix Certificate No. 798965M_03 prepared by Gradwell Consulting, dated 20 August 2018; 6. a joint expert report on stormwater filed on 20 August 2018; 7. a joint expert report on access filed on 15 August 2018; 8. a joint expert report on town planning filed on 15 August 2018; 9. a supplementary joint expert town planning report filed on 21 August 2018; 10. the development application for the land dated 21 November 2017; and 11. attached plans in support of the development application. 1. The respondent, Sutherland Shire Council, tendered the following evidence in support of the consent orders: 1. an amended statement of facts and contentions, dated 7 August 2018; and 2. the development consent conditions, with an attached tree protection plan, dated 6 August 2018, and an attached landscape plan, dated 16 August 2018. 1. No objectors were present. Conclusion and Orders 1. Having considered the evidence relied upon by the parties, I am satisfied that not only does the Court have the power to make the consent orders sought, moreover, that it is an appropriate exercise of my discretion to make those orders. 2. Accordingly, the Court orders that: 1. the applicant is granted leave to rely upon the following amended plans and additional reports: Drawing No. Title Author Date DA-00 Rev D Cover Sheet MD+A Architects 17 August 2018 DA-01 Rev E Site Analysis Plan DA-02 Rev E Site Plan DA-03 Rev E GFA Calculations DA-04 Rev E Basement Plan DA-05 Rev E Ground Floor Plan DA-06 Rev E First Floor Plan DA-07 Rev E Roof Plan DA-08 Rev E Elevations DA-09 Rev E Elevations DA-10 Rev E Sections 1 DA-11 Rev E Sections 2 DA-12 Rev E Shadow Diagrams (June 21st) DA-13 Rev E Shadow Diagrams (September 21st) DA-14 Rev E Shadow Diagrams (December 21st) DA-15 Rev E Shadow Diagrams (March 21st) DA-17 Rev E Landscape Calculation Plan DA-18 Rev E Waste Management Plan DA-19 Rev E Construction Management Plan DA-20 Rev E Max Height Plane DA-21 Rev E Perspective DA-22 Rev E Perspective DA-23 Rev E Perspectives DA-24 Pre and Post Adaption Plans L/01 Rev F Cover Sheet A Total Concept 16 August 2018 L/02 Rev H Landscape Plan – Ground Floor L/03 Rev F Plant Schedule & Typical Details 1692 – S1/6 Rev B Stormwater Drainage / Sediment Control Details John Romanous & Associates 16 August 2018 1692 – S2/6 Rev B Stormwater Drainage / Sediment Control Details 1692 – S3/6 Rev B Stormwater Drainage / Sediment Control Details 1692 – S4/6 Rev B Stormwater Drainage / Sediment Control Details 1692 – S5/6 Rev B Stormwater Drainage / Sediment Control Details 1692 – S6/6 Rev B Stormwater Drainage / Sediment Control Details 1 A Stormfilter Detention Tank 4 cartridge storm filter system Stormwater 360 3 November 2016 Author Date Title BASIX certificate No. 798965M_03 Gradwell Consulting 20 August 2017 Solar Access Analysis –v4.0 SLR 17 August 2018 Statutory Compliance Report Rev 1.2 DPC 17 August 2018 1. the appeal is upheld; 2. the applicant is to pay the respondent's costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the sum of $12,000, to be paid within 28 days; and 3. development application No DA17/0148 for the demolition of existing structures and construction of thirteen (13) townhouses and associated parking at Lots 5, 6 and 7 DP 36423 being No 147-151 President Avenue, Miranda, is approved subject to the conditions attached in Annexure A. ********** Annexure A MBC Property Australia Nominees Pty Ltd v Sutherland Shire Council Agreed Conditions of Consent 22.8.18 (58.3 KB, docx) Amendments 30 August 2018 - Annexure link added 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: 30 August 2018