Land and Environment Court New South Wales Medium Neutral Citation: Deluxe Project Group Pty Ltd v Wingecarribee Shire Council [2019] NSWLEC 1006 Hearing dates: Conciliation conference on 21 December 2018 Date of orders: 10 January 2019 Decision date: 10 January 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [9] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; approving a seniors housing development Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Wingecarribee Local Environmental Plan 2010 Category: Principal judgment Parties: Deluxe Project Group Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Solicitors: S Patterson, Wilshire Webb Staunton Beattie (Applicant) C Shaw, Shaw Reynolds Lawyers (Respondent) File Number(s): 2017/384798 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent's refusal of development application No. 17/0900 (DA), for demolition of existing structures and construction of a seniors housing development. The site is comprised of three (3) lots: 84-86 Kangaloon Road, Bowral – Lots 1 & 2 DP 1215051; and 2 Cypress Parade, Bowral – Lot 24 DP 83917. 2. It is noteworthy that this seniors housing proposal is directly permissible under the provisions of Wingecarribee Local Environmental Plan 2010 (LEP), and consent is sought under this instrument rather than State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004. 3. 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 21 December 2018. I presided over the conciliation conference. 4. At the conciliation conference, the parties provided to the Court an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court granting leave to the Applicant to amend the application (satisfying the Respondent's concerns) and upholding the appeal; and granting development consent to the DA subject to conditions. 5. 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. 6. The parties' decision involves the Court exercising the functions of the consent authority under s 4.16(1)(a) of the EPA Act to the DA. The parties identified the jurisdictional prerequisites of relevance in these proceedings explaining that all had been satisfied. I note that the amended application complies with the relevant provisions of the LEP, and without need for recourse to cl 4.6 (concerned with exceptions to development standards). 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 8. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 9. The Court orders: 1. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Plans Revision Prepared By Dated Architectural Plans DA1001 Context/Site Plan Issue C Urban Link 11/07/18 DA1002 Locality Map Issue C Urban Link 11/07/18 DA2001 Ground Floor Plan Issue D Urban Link 11/07/18 DA2002 First Floor Plan Issue D Urban Link 11/07/18 DA2003 Traffic – Cars Inbound Issue C Urban Link 11/07/18 DA2004 Traffic – Cars Outbound Issue C Urban Link 11/07/18 DA2005 Traffic – 10m Truck Issue C Urban Link 11/07/18 DA2007 Street Elevations Issue D Urban Link 11/07/18 DA2008 Street Elevations (no trees) Issue D Urban Link 11/07/18 DA2009 Ground Plan (piered const.) Issue D Urban Link 11/07/18 DA2101 Unit 1 Issue A Urban Link 11/07/18 DA2102 Unit 2 Issue A Urban Link 11/07/18 DA2103 Unit 3 Issue A Urban Link 11/07/18 DA2104 Unit 4 Issue A Urban Link 11/07/18 DA2105 Unit 5 Issue A Urban Link 11/07/18 DA2106 Unit 6 Issue A Urban Link 11/07/18 DA2107 Unit 7 Issue A Urban Link 11/07/18 DA2108 Unit 8 Issue A Urban Link 11/07/18 DA2109 Unit 9 Issue A Urban Link 11/07/18 DA2110 Unit 10 Issue A Urban Link 11/07/18 DA2111 Unit 11 Issue A Urban Link 11/07/18 DA2112 Unit 12 Issue A Urban Link 11/07/18 DA2113 Unit 13 Issue A Urban Link 11/07/18 DA2114 Unit 14 Issue A Urban Link 11/07/18 DA2115 Unit 15 Issue A Urban Link 11/07/18 DA2116 Unit 16 Issue A Urban Link 11/07/18 DA2117 Unit 17 Issue A Urban Link 11/07/18 DA2118 Unit 18 Issue A Urban Link 11/07/18 DA2119 Slab Hut - Detail Issue A Urban Link 11/07/18 DA4001 Site Cross Sections Issue A Urban Link 11/07/18 Stormwater Plans D1 Site and Ground Floor Stormwater Drainage Plan B LMW Design Group 10/07/18 D2 Stormwater Drainage Details and Calculations A LMW Design Group 09/07/18 D3 First Floor Stormwater Drainage Plan A LMW Design Group 09/07/18 D4 Music Model Inputs and Results A LMW Design Group 09/07/18 Engineering Plans D1 Site Management Plan – Demolition and Excavation A LMW Design Group 09/07/18 D2 Site Management Plan – Construction Stage A LMW Design Group 09/07/18 Landscape Plans LA00 Cover Sheet Rev AA TaylorBrammer 11/07/18 LA01 Landscape Concept Plan Rev AA TaylorBrammer 11/07/18 LA02 Tree Retention and Removal Plan Rev AA TaylorBrammer 11/07/18 LA03 Landscape Planting Plan Rev AA TaylorBrammer 11/07/18 LA04 Section A-A Rev AA TaylorBrammer 11/07/18 Supporting Documents Prepared By Dated Basix Certificate Number: 947792M GAT and Associates 31/07/18 Nationwide House Energy Rating Scheme Certificate Number: 0003019676 and 0003020250 GAT and Associates 31/07/18 Arborist Report Summit Tree Services 12/07/18 Water and Sewer Modelling Report Urban Water Solutions 09/07/18 Heritage Impact Statement Urbis 10/07/18 Disability Access Report – DRAFT Access Solutions 11/07/18 Performance Solution – doorway circulation space Access Solutions 11/07/18 Overland Flood Study and Flood Impact Report Alpha Engineering and Development 11/07/18 Water Cycle Management Study LMW Design Group Pty Ltd 10/08/18 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs in the amount of $8,200, inclusive of GST, to be paid on exchange of this agreement. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA 17/0900 for the demolition of existing two dwellings and construction of a proposed seniors living development of 18 dwellings, subject to the conditions of consent annexed hereto and marked "A". ………………………….. P Walsh Commissioner of the Court Annexure A Architectural Plans Landscape Plans ********** 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: 11 January 2019