Land and Environment Court New South Wales Medium Neutral Citation: Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1504 Hearing dates: Conciliation Conference on 18 October 2019 Date of orders: 25 October 2019 Decision date: 25 October 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Development consent 18/0531, granted on 3 April 2019 for two boarding houses containing a total of 65 rooms and basement parking, is modified to amend the monetary contribution requirement in Part 2 condition 4 of the conditions of consent to $682,215, subject to the consolidated conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145 Texts Cited: Sutherland Shire Council Section 7.11 Development Contribution Plan 2016 Category: Principal judgment Parties: Freedom Development Group Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: V Conomos (Solicitor) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2019/139024 Publication restriction: No Judgment 1. COMMISSIONER: This is a modification application made to the Land and Environment Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 18/0531 granted on 3 April 2019 (Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145) for the demolition of existing structures and the construction of two boarding houses comprising 65 rooms and a shared basement that straddles the shared boundary (the approved development) at 391 and 393 Kingsway, Caringbah (the site). 2. The proposal is to amend Condition 4 in Part 2 of the conditions of consent to reduce the monetary contribution required pursuant to s 7.11 of the EPA Act and the Sutherland Shire Council Section 7.11 Development Contribution Plan 2016 (s 7.11 Plan) from a total monetary contribution of $1,260,000 to $682,215 to be paid to Sutherland Shire Council towards the cost of regional and public domain works, with such payment to be made prior to the issue of a construction certificate. 3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the applicant and the respondent, Sutherland Shire Council (the Council), which has been held on 18 October 2019 2019. I 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. 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(8) of the EPA Act to modify the development consent granted by the Court. 6. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised, pursuant to s 4.55(8) of the EPA Act. 7. I am satisfied that the development to which the consent as modified relates, is substantially the same development as the development for which the consent was originally granted. At the time of the determination of the development application, the s 7.11 Plan applied the maximum $20,000 contribution per dwelling within the growth precinct areas, which included Caringbah. The Council adopted an amendment to the s 7.11 Plan which commenced on 1 May 2019 (Edition 3) specifically for boarding house developments to reduce the contribution required per boarding house room to $11,111, with a credit for existing dwellings. In accordance with the amendment, the contribution is 65 x $11,111 – 2 x $20,000 which equals $682, 215. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Development consent 18/0531 granted on 3 April 2019 for two boarding houses containing a total of 65 rooms and basement parking, is modified to amend the monetary contribution requirement in Part 2 condition 4 of the conditions of consent to $682,215, subject to the consolidated conditions of consent at Annexure A. ____________ Susan O'Neill Commissioner of the Court Annexure A (654 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: 29 October 2019