Land and Environment Court New South Wales Medium Neutral Citation: Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney [2019] NSWLEC 1059 Hearing dates: 14 February 2019 Date of orders: 14 February 2019 Decision date: 14 February 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: See [6] below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; security deposit for the making good of any damage caused to any property of the consent authority. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Karimbla Construction Services (NSW) Pty Limited (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: S Nash (Applicant) Solicitors: Meriton Group (Applicant) A Simpson, Council of the City of Sydney (Respondent) File Number(s): 2018/30384 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination of Modification Application No. D/2015/1355/A to modify Development Consent D/2015/1355/K to amend the conditions of consent, including Conditions 91 (Public Domain Plan) and 91A (Public Domain Works Deposit) for the development at 25-29 Rothschild Avenue and 5-13 Rosebery Avenue, Rosebery, by the Council of the City of Sydney (the Council). 2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 23 January 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties. 3. The amended conditions concern a security deposit for the making good of any damage caused to the property of the Council and are imposed on the development consent pursuant to s 4.17(6) of the EPA Act. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. 4. 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. The parties' decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent. Conclusion 1. 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. 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. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. The modification application D/2016/1355/A to modify development consent D/2016/1355/K is determined by approval subject to the conditions contained in Annexure 'A'. 3. As a consequence of order (2), Development Consent No. D/2016/1355/A is now subject to the consolidated, modified conditions of development consent set out in Annexure "B". ____________ Susan O'Neill Commissioner of the Court Annexure A (250 KB, pdf) Annexure B (796 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: 14 February 2019