Land and Environment Court New South Wales Medium Neutral Citation: Modog Pty Ltd v Mosman Municipal Council [2018] NSWLEC 1564 Hearing dates: Conciliation conference on 5, 23 October 2018 Date of orders: 25 October 2018 Decision date: 25 October 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See [4] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Modog Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Solicitors: E Fleming, Swaab Attorneys (Applicant) M Cottom, Pikes & Verekers Lawyers (Respondent) File Number(s): 2018/160227 Publication restriction: No Judgment 1. COMMISSIONER: 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". 2. 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. 3. 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. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to amend development application No. D/2017/631 and to rely upon the following amended plans as attached at Annexure "A": Drawing No. and Revision Plan Name Date DA000 (Issue D) Cover Sheet 11 Oct. 18 DA003 (Issue D) Site Plan 11 Oct. 18 DA101 (Issue D) First Floor Plan 11 Oct. 18 DA102 (Issue D) Second Floor Plan 11 Oct. 18 DA103 (Issue D) Third Floor Plan 11 Oct. 18 DA104 (Issue D) Fourth Floor Plan 11 Oct. 18 DA105 (Issue D) Fifth Floor Plan 11 Oct. 18 DA106 (Issue D) Roof Plan 11 Oct. 18 DA201 (Issue D) Street Elevations 11 Oct. 18 DA202 (Issue D) Southern Site Elevation 11 Oct. 18 DA203 (Issue D) Northern Site Elevations 11 Oct. 18 DA301 (Issue D) Longitudinal Section A-A 11 Oct. 18 DA302 (Issue D) Concept Construction Section 11 Oct. 18 DA401 (Issue D) Areas Schedule 11 Oct. 18 DA402 (Issue D) Preliminary Strata Schedule 11 Oct. 18 DA403 (Issue D) Landscape Area Comparison 11 Oct. 18 DA501 (Issue D) Materials & Finishes Schedule 11 Oct. 18 SOL101 (Issue D) Solar Access – Views from Sun 11 Oct. 18 SOL102 (Issue D) Solar Access – View from Sun 11 Oct. 18 SOL103 (Issue D) Solar Access – View from Sun 11 Oct.18 SOL104 (Issue D) Solar Access – View from Sun 11 Oct. 18 SOL105 (Issue D) Solar Access – View from Sun 11 Oct. 18 SOL106 (Issue D) Solar Access – View from Sun 11 Oct. 18 SOL107 (Issue D) Solar Access – View from Sun 11 Oct. 18 SOL201 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL202 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL203 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL204 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL205 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL206 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 SOL207 (Issue D) Elevational Shadows 214B Raglan 11 Oct. 18 LPDA 18-168 (Issue D) Landscape Plan (Roof Plan) 26 Sept. 18 LPDA 18-168 Hardscape Plan & Details 26 Sept. 18 LPDA 18-168 Specification & Detail 26. Sept 18 Sketch showing details & levels over Part of No. 214B and 216 Raglan Street, Mosman, prepared by Adam Clerke Surveyors Pty Ltd 10 Oct 18 Survey Plan showing details and levels over Lot 8 in DP 4251, prepared by C.M.S Surveyors Pty Ltd 8 Oct. 2016 Statement of Compliance, Access for People with a Disability Report, prepared by Howard Moutrie, Rev B 12 Oct 2018 Updated BASIX Certificate 1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, as agreed or assessed. 2. The Applicant's written cl.4.6 requests (attached at Annexure "B") to vary the following controls are upheld: 1. Clause 40(3) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; and 2. Clause 40(4)(c) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. 1. The Appeal is upheld. 2. Development Application No.8.2018.56.1 for the demolition of existing structures and improvements, removal of trees, construction of a housing development for seniors or people with a disability comprising four (4) self-contained dwellings and basement car parking, and associated landscaping on land at Lot 8 in DP4251 and known as 216 Raglan Street, Mosman, is approved subject to the conditions in Annexure "C". ………………………. Michael Chilcott Commissioner of the Court Annexure A Annexure B Annexure C (C) 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: 29 October 2018