Little Blessings Early Learning Centre Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1550

Land and Environment Court New South Wales

Medium Neutral Citation: Little Blessings Early Learning Centre Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1550 Hearing dates: Conciliation conference on 11 and 25 September 2018 Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: MODIFICATION APPLICATION – child care centre – increase to number of children – conciliation conference – agreement between the parties – orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Little Blessings Early Learning Centre Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: J Reid (Applicant)

Solicitor: J Amy (Respondent) File Number(s): 2018/88488 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Little Blessings Early Learning Centre Pty Ltd against the deemed refusal by Sutherland Shire Council of application no MA17/0366 to modify development consent DA15/0099 (as modified by MA17/0019) for the property at 47 Pacific Street, Caringbah (Lot 36 DP 7959). The latest application seeks to increase the number of children, modify the front landscaped area, remove conditions restricting operation times for the outdoor play area and amend conditions 1, 2A, 18, 23, 24 and 27 of the development consent. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. Consent is granted to the application (MA17/00019) to modify of Development Consent 15/0099, in accordance with the modification of conditions as set out in Annexure A. 3. As a consequence of Order (2) above, Development Consent DA15/0099 is now subject to the consolidated, modified conditions of consent set out in Annexure B. ………………………. J Gray Commissioner of the Court Annexure A (52.2 KB, pdf) Annexure B (143 KB, 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 October 2018