Land and Environment Court New South Wales Medium Neutral Citation: Design Link Australia Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1433 Hearing dates: Conciliation conference on 30 August 2019 Date of orders: 20 September 2019 Decision date: 20 September 2019 Jurisdiction: Class 1 Before: Walsh C Decision: The Court Orders: (1) The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure "A". (2) The applicant is to pay the respondent's costs thrown away for the agreed amount of $3,000 as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these Orders. (3) The Appeal is upheld. (4) Development Application No. DA18/0558 for demolition of existing structures and construction of a three and two storey boarding house comprising 10 rooms with parking for 5 vehicles, motorcycle and bicycle parking is approved subject to the conditions set out 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 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No.55- Remediation of Land Sutherland Shire Local Environmental Plan 2015 Category: Principal judgment Parties: Design Link Australia Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: P Lalich (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: HWL Ebsworth (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2018/393229 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against Sutherland Shire Council's deemed refusal of Development Application No. DA 18/0558 ('DA'). 2. The applicant seeks consent to undertake demolition of existing structures and develop a two and three storey boarding house, comprising 10 boarding rooms and parking along with associated works, at 15 Ventura Avenue, Miranda also known as Lot 12 DP 26741 ('site'). 3. 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 30 August 2019, and at which I presided. After the conciliation conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting development 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. Jurisdiction 1. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised that there were no jurisdictional considerations that would prevent the Court determining the appeal in accordance with the agreement. In terms of jurisdiction the parties advise that: 1. The proposal is permissible on the site and complies with development standards contained in Sutherland Shire Local Environmental Plan 2015 ('LEP'). 2. The proposal complies with the requirements of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). 3. In regard to cl 7(1) of State Environmental Planning Policy No.55 - Remediation of Land (SEPP55), the Council has undertaken a desk-top audit of the subject site and is satisfied that the land is suitable for the purpose proposed by the subject application. I am also satisfied in that regard based on this advice. 1. I also note that under s 4.15(1)(d) of the EPA Act there is a need for a consent authority to have regard to submissions. The Council advised that the amended plans are in part responding to concerns raised lay submissions from local residents. 2. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. As the parties' decision is a decision that the Court could have so made, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. I note that I have had no direct regard to the merits of the application in coming to this position. 3. The Court orders: 1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure "A". 2. The applicant is to pay the respondent's costs thrown away for the agreed amount of $3,000 as a result of amending the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these Orders. 3. The Appeal is upheld. 4. Development Application No. DA18/0558 for demolition of existing structures and construction of a three and two storey boarding house comprising 10 rooms with parking for 5 vehicles, motorcycle and bicycle parking is approved subject to the conditions set out in Annexure "A". ………………………. P Walsh Commissioner of the Court Annexure A (309 KB) Architectural Plans (E.2) (10.7 MB) Architectural Plans (E.3) (17.5 MB) Landscape Plan (496 KB) Stormwater pages 1 to 3 (886 KB) ********** 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: 20 September 2019