Borg v Penrith City Council [2019] NSWLEC 1501

Land and Environment Court New South Wales

Medium Neutral Citation: Borg v Penrith City Council [2019] NSWLEC 1501 Hearing dates: Conciliation conference on 4 October 2019 Date of orders: 22 October 2019 Decision date: 22 October 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is upheld. (2) The Applicant's application to modify conditions 6 and 7 of development consent DA18/0672, is approved, and is now subject to the modified conditions set out in Annexure 'A'. Catchwords: MODIFICATION 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: Nickolas Borg (Applicant) Penrith City Council (Respondent) Representation: Counsel: G McKee (Solicitor) (Applicant) M Bullivant (Solicitor) (Respondent)

Solicitors: McKee Legal Solutions (Applicant) Council of the City of Penrith (Respondent) File Number(s): 2019/159585 Publication restriction: No

Judgment 1. COMMISSIONER: Nickolas Borg (the Applicant) has appealed the deemed refusal by Penrith City Council (the Respondent) of his application to modify development consent (DA18/0672.01) by deleting two conditions of consent imposed by the Respondent in relation to the construction of a dwelling house, shed, pool and driveway, with on-site waste water irrigation system, at 168 Church Street, Castlereagh (Lot 6, DP1209152) (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.9 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 has been held on 4 October 2019, and I have 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 4.55(1A) of the EPA Act to grant consent to the modification application. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. These are that under the provisions of s 4.55(1A) as follows: 1. the Court must be satisfied that the development as modified must have minimal environmental impact; 2. the Court must be satisfied that the development to which the consent as modified relates must be substantially the same development as the development for which consent was originally granted; 3. the application to modify the consent has, if required, been notified. 1. The parties have explained how these jurisdictional prerequisites have been satisfied, and consequently, 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. 2. 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. 3. The Court orders: 1. The appeal is upheld. 2. The Applicant's application to modify conditions 6 and 7 of development consent DA18/0672, is approved, and is now subject to the modified conditions set out in Annexure 'A'. ………………………. Michael Chilcott Commissioner of the Court Annexure A (324 KB)