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. Orders 1. The Court orders: 1. The Applicant is granted leave to rely on the following amended plans: Drawing No. Drawing Title Revision Date Prepared by 106E Proposed Roof Plan E 27.06.19 DBCF Pty Limited 107E Proposed Elevation North E 27.06.19 DBCF Pty Limited 108E Proposed Elevation South E 27.06.19 DBCF Pty Limited 109E Proposed Elevation East E 27.06.19 DBCF Pty Limited 110F Proposed Elevation West F 27.06.19 DBCF Pty Limited 111E Proposed Section A‑A E 27.06.19 DBCF Pty Limited 1. Each party is to pay their own costs of the proceedings. 2. The appeal is upheld. 3. The Approval dated 8 June 2018 to Modify Development Consent No. DA217/2016, originally granted by the Respondent on 27 February 2017 and previously modified on 28 July 2017, is amended as follows: 1. Condition 1 is amended to read as follows: 1. The development is to be strictly in accordance with the following plans: Drawing No. Drawing Title Issue No. Date Prepared by 104B Proposed Floor Plan B 18.05.17 DBCF Pty Limited 105B Proposed First Floor Plan B 18.05.17 DBCF Pty Limited 106E Proposed Roof Plan E 27.06.19 DBCF Pty Limited 107E Proposed Elevation North E 27.06.19 DBCF Pty Limited 108E Proposed Elevation South E 27.06.19 DBCF Pty Limited 109E Proposed Elevation East E 27.06.19 DBCF Pty Limited 110F Proposed Elevation West F 27.06.19 DBCF Pty Limited 111E Proposed Section A‑A E 27.06.19 DBCF Pty Limited 113B Site Plan B 18.05.17 DBCF Pty Limited 114B Environmental Site Management Plan & Waste Management Plan B 18.05.17 DBCF Pty Limited 1. Condition 1A is deleted. ………………………. Susan O'Neill Commissioner of the Court ********** 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: 02 July 2019