Land and Environment Court New South Wales Medium Neutral Citation: Anrite Holdings Pty Ltd v Cumberland Council [2019] NSWLEC 1306 Hearing dates: Conciliation conference on 28 June 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [6] below Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 Category: Principal judgment Parties: Anrite Holdings Pty Ltd (First Applicant) Manmark Holdings Pty Ltd (Second Applicant) Chrisyl Holdings Pty Ltd (Third Applicant) Cumberland Council (Respondent) Representation: Counsel: Dr J Smith (Applicants) Solicitors: M Draybi, Centurion Lawyers Pty Ltd (Applicants) J Corradini-Bird, Marsdens Law Group (Respondent) File Number(s): 2018/221996 Publication restriction: No Judgment 1. COMMISSIONER: The applicant, Anrite Holdings Pty Ltd, has appealed against the Council's refusal of a development application (DA 2017/393) for the demolition of existing structures and construction of a 3 storey residential flat building containing 6 units (1 x 1 bedroom and 5 x 2 bedroom) over basement car parking accommodating 7 car parking spaces on the land at 59 Kenyons Road, Merrylands (Site). 2. The appeal is brought under s 8.7 of the Environmental Planning & Assessment Act 1979 (EPA Act) and is based on an amended application. The chronology of events leading to the amendments is outlined in the Council's Statement of Facts and Contentions (SOFC) together with the relevant planning controls. The SOFC describes the site as being within the R4 High Density Residential zone under the Holroyd Local Environmental Plan 2013, and the proposal is permissible and the development satisfies all other statutory controls. 3. Before the matter proceeded to hearing, the matter was referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 28 June 2019. I was the presiding Commissioner and at that time I was told that the parties had 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 development consent to the amended development application subject to conditions. 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 grant consent to the development application. As it presently stands, there are no jurisdictional prerequisites that must be satisfied before this function can be exercised. 5. Accordingly, 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. 6. The Court orders: 1. The Applicant is granted leave to amend Development Application No. 2017/393 and to rely upon the following amended plans in the proceedings: DRAWING NO. DESCRIPTION PREPARED BY REV DATE 01 Cover Page Baini Design 5 05/03/19 02 Compliance Table - Consultants Baini Design 5 05/03/19 03 Site Plan Baini Design 5 05/03/19 04 Site Analysis Baini Design 5 05/03/19 05 Demolition Plan Baini Design 5 05/03/19 06 Basement Baini Design 5 05/03/19 07 Ground Floor Baini Design 5 05/03/19 08 First Floor Baini Design 5 05/03/19 09 Second Floor Baini Design 5 05/03/19 10 Third Floor/Common Area Baini Design 5 05/03/19 11 Roof Plan Baini Design 5 05/03/19 12 Section A – A Baini Design 5 05/03/19 13 Section B – B Baini Design 5 05/03/19 14 Section C – C & D – D Baini Design 5 05/03/19 15 South & North Elevations Baini Design 5 05/03/19 16 East & West Elevations Baini Design 5 05/03/19 17 South & North Elevations – Materials Baini Design 5 05/03/19 18 East & West Elevations – Materials Baini Design 5 05/03/19 19 Materials and Finishes Schedule Baini Design 5 05/03/19 20 Site Coverage / Deep Soil Zone Baini Design 5 05/03/19 21 Floor Calculation Plan 1 Baini Design 5 05/03/19 22 Floor Calculation Plan 2 Baini Design 5 05/03/19 23 Solar Access / Cross Ventilation 1 Baini Design 5 05/03/19 24 Solar Access / Cross Ventilation 2 Baini Design 5 05/03/19 25 BASIX Commitments Baini Design 5 05/03/19 26 Streetscape Elevations Baini Design 5 05/03/19 27 Shadows Diagram (June 21st) Baini Design 5 05/03/19 28 Elevational Shadows Baini Design 5 05/03/19 29 Views from the Sun 1 Baini Design 5 05/03/19 30 Views from the Sun 2 Baini Design 5 05/03/19 31 3D Views 1 Baini Design 5 05/03/19 32 3D Views 2 Baini Design 5 05/03/19 33 Perspective Views Baini Design 5 05/03/19 34 Notification Plan Baini Design 5 05/03/19 1622.GD.01 Landscape Plan – Ground Floor Greenland Design D 14/03/19 1622.GD.02 Landscape Plan – Roof Terrace Greenland Design D 14/03/19 1622.GD.03 Landscape Details & Specification Greenland Design D 14/03/19 ACE170315.S Cover Sheet, Notes & Legend Australian Consulting Engineers C 11/03/19 W.DA - 000 ACE170315.S Stormwater Layout Plan Basement Level Sheet 1 of 2 Australian Consulting Engineers C 11/03/19 W.DA – 101 ACE170315.S Stormwater Layout Plan Basement Level Sheet 2 of 2 Australian Consulting Engineers C 11/03/19 W.DA – 102 ACE170315.S Stormwater Layout Plan Ground Level Australian Consulting Engineers C 11/03/19 W.DA – 103 ACE170315.S On-Site Detention Details and Calculation Sheet Australian Consulting Engineers C 11/03/19 W.DA – 104 ACE170315.S Miscellaneous Details Australian Consulting Engineers C 11/03/19 W.DA – 105 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $2,500 within 21 days of this order being made. 2. The appeal is upheld. 3. Development Application No.2017/393 for the demolition of existing structures and construction of a 3 storey residential flat building containing 6 units (1 x 1 bedroom and 5 x 2 bedroom) over basement car parking accommodating 7 car parking spaces on the land at 59 Kenyons Road, Merrylands is approved subject to the conditions of consent annexed hereto and marked "A". ……………………… S Dixon Senior Commissioner of the Court Annexure A (168 KB, pdf) ********** 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