Planet Warriewood Pty Ltd v Hawkesbury City Council [2019] NSWLEC 1067

Land and Environment Court New South Wales

Medium Neutral Citation: Planet Warriewood Pty Ltd v Hawkesbury City Council [2019] NSWLEC 1067 Hearing dates: Conciliation conference on 18 February 2019 Date of orders: 18 February 2019 Decision date: 18 February 2019 Jurisdiction: Class 1 Before: Gray C Decision: See [6] below Catchwords: MODIFICATION APPLICATION – multi-storey building - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Planet Warriewood Pty Ltd (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: J Smith (Applicant)

Solicitors: McKees Legal Solutions (Applicant) J McCullen, Marsdens Law Group (Respondent) File Number(s): 2018/168005 Publication restriction: No

Judgment 1. COMMISSIONER: This is an application by Planet Warriewood Pty Ltd to modify a Court granted consent for the construction of a multi-storey building consisting of an entertainment facility, recreational facilities (indoor), pub, shop, bulky goods premises, restaurants/cafes and a car park at 8 Groves Avenue, Mulgrave. The original consent was granted by the Court (in Proceedings No.10959 of 2015) as a result of a conciliated agreement on 14 April 2016. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [6] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 18 February 2019. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. As the presiding Commissioner, I was satisfied that the decision was one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction on the basis that the modification application merely involves the design, footprint, envelope and layout of the development and the development remains a mixed use multi-storey building consisting of an entertainment facility, recreational facilities and restaurants/cafes. As a result, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act. 6. The Court orders that: 1. The Applicant is granted leave to amend the application pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979 (Modification Application No. S960054/18) and to rely upon the following amended plans and documents: Documentation Prepared by Dated Drawing No. 1054-012 Rev 'M' 'Basement Level 2 Car Park' HHPA Architects Pty Ltd and MM Atelier Architects 10 October 2018 Drawing No. 1054-013 Rev 'P' 'Basement Level 1 Car Park' HHPA Architects Pty Ltd and MM Atelier Architects 10 October 2018 Drawing No. 1054-014 Rev 'X' 'Ground Floor Plan' HHPA Architects Pty Ltd and MM Atelier Architects 10 October 2018 Drawing No. 1054-015 Rev 'P' 'First Floor Plan' HHPA Architects Pty Ltd and MM Atelier Architects 12 October 2018 Drawing No. 1054-019 Rev 'N' 'Elevations' HHPA Architects Pty Ltd and MM Atelier Architects 11 October 2018 Drawing No. 1054-020 Rev 'H' 'Sections' HHPA Architects Pty Ltd and MM Atelier Architects 17 October 2018 Drawing No. 1054-021 Rev 'E' 'Sections' HHPA Architects Pty Ltd and MM Atelier Architects 17 October 2018 Drawing No. 3/D 'Inter-Allotment Drainage Plan' Taylor Consulting 1 August 2018 Drawing No. 4/D 'Inter-Allotment Drainage Long-Sections' Taylor Consulting 23 October 2018 Annexure D 'Height Bar Concept' McLaren Traffic Engineering 28 September 2018 'Loading Dock Management Plan' (Reference No. 18002.05FA) McLaren Traffic Engineering 31 October 2018 'Plan of Management – Mixed Use Development' (Reference No. 8113E Revision 5) DFB Planning 14 November 2018 'Crime Prevention Through Environmental DFP Planning Consultants 22 August 2018 Design – Proposed Mixed Use Development' (Reference No. 8113E – Revision 4)