DBCF Pty Ltd v Lane Cove Municipal Council [2019] NSWLEC 1305

Land and Environment Court New South Wales

Medium Neutral Citation: DBCF Pty Ltd v Lane Cove Municipal Council [2019] NSWLEC 1305 Hearing dates: Conciliation Conference held on 27 June 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: See Orders at [7] below Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: DBCF Pty Ltd (Applicant) Lane Cove Municipal Council (Respondent) Representation: Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2018/ 338871 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 terms of the Development Consent 217/16 (the consent), as modified, granted by Lane Cove Council (the Council) to modify a development consent for alterations and additions at 6 Mitchell Street, Greenwich (the site). The applicant seeks the deletion of condition 1A of the consent which deleted the pitched tiled roof proposed to replaced the existing roof. 2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 27 June 2019. I have presided over the conciliation conference. 3. 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 deleting condition 1A of the consent and amending the proposal to include a pitched tiled roof with a shallower pitch and lower ridge height of maximum height RL 27.75 when compared to the form of the roof in the modification application. 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 4.16 of the EPA Act to determine the application. 5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent. 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, because the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. 6. 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.