XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1111

Land and Environment Court New South Wales

Medium Neutral Citation: XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1111 Hearing dates: Conciliation conference on 7 March 2019; 15 March 2019; 18 March 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See orders at [8] below Catchwords: DEVELOPMENT APPLICATION: 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: XLJ Investment Group Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: A Gadiel, Mills Oakley (Applicant) C Drury, Sparke Helmore Lawyers (Respondent) File Number(s): 2018/265611; 2018/391789 Publication restriction: No

Judgment 1. COMMISSIONER: This judgment involves two, originally distinct proceedings, brought under Class 1 of the Court's jurisdiction. Both are related to an approved 5 to 7 storey residential flat building at 2-3 Kirrawa Close and 1448-1454 Pacific Highway, Turramurra. The proceedings were consolidated in accordance with short minutes of order filed 18 January 2019. 2. The proceedings referenced as Court file number 2018/265611 relates to DA0605/11 which was the original approval for the residential flat buildings described above. This approval was granted by the Court in then proceedings referenced as 2013/10190. The current proceedings (2018/265611) sought, by way of a modification application under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), to insert a new condition into DA 0605/11 relating to common property. It is an aspect of the agreement between the parties that this application before the Court be dismissed. 3. The proceedings referenced as Court file number 2018/391789 relates to Council's deemed refusal of DA0506/18. This development application sought consent for consolidation of the land which would accommodate the approved residential flat building, and a 103 lot strata subdivision of approved development. These proceedings were brought under s 8.7(1) of the EPA Act. 4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7, 15 & 18 March 2019. I presided over the conciliation conference. 5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court dismissing the application in regard to proceedings 2018/265611 (the modification application relating to community title) and upholding the appeal and granting development consent to proceedings 2018/391789 (the application relating to site consolidation and strata subdivision), subject to conditions. 6. 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 includes the Court exercising the function under s 4.16 of the EPA Act to grant consent to a development application (that is DA0506/18). There are often jurisdictional prerequisites that must be satisfied before this function can be exercised. In these proceedings, involving site consolidation and strata subdivision of approved development, only, the parties advise, and I am duly satisfied, that there are no jurisdictional prerequisites of relevance. 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. 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. 8. The Court orders: 1. The appeal in proceedings number 2018/391789 is upheld. 2. Development application DA0506/18 to subdivide land currently comprised of 6 lots, into 101 lots, is determined by grant of consent, subject to the conditions in Annexure A. 3. The appeal in proceedings number 2018/265611 is dismissed. 4. The application to modify the development consent granted by the Land and Environment Court to DA0605/11 on 9 December 2013 (proceedings 10190 of 2013) is refused. ………………………. Peter Walsh Commissioner of the Court Annexure A (144 KB, pdf)