Arkibis Pty Ltd t/a Arkhaus v Sutherland Shire Council [2019] NSWLEC 1252

Land and Environment Court New South Wales

Medium Neutral Citation: Arkibis Pty Ltd t/a Arkhaus v Sutherland Shire Council [2019] NSWLEC 1252 Hearing dates: Conciliation conference on 24 May 2019 Date of orders: 07 June 2019 Decision date: 07 June 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A. (2) The Applicant is to pay the Respondent's s 8.15(3) costs thrown away in the proceeding in the agreed amount of $5,000. (3) The appeal is upheld. (4) Development application DA18/0720 seeking the demolition of existing structures and construction of a boarding house containing 26 boarding rooms over basement car parking, is determined by the grant of consent, subject to the conditions attached in Annexure 'A'. 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: Arkibis Pty Ltd t/a Arkhaus (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2018/236221 Publication restriction: No

Judgment 1. COMMISSIONER: Arkibis Pty Ltd t/a Arkhaus (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of its application (DA18/0720) for the demolition of existing structures, and construction of a boarding house containing 26 boarding rooms, over basement car parking, at 108 Flora Street, Sutherland (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. 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 24 May 2019, and I presided over the conciliation conference. 4. 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 upholding the appeal and granting consent to the development application, 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. The Parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised. 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 given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A. 2. The Applicant is to pay the Respondent's s 8.15(3) costs thrown away in the proceeding in the agreed amount of $5,000. 3. The appeal is upheld. 4. Development application DA18/0720 seeking the demolition of existing structures and construction of a boarding house containing 26 boarding rooms over basement car parking, is determined by the grant of consent, subject to the conditions attached in Annexure 'A'.