Land and Environment Court New South Wales Medium Neutral Citation: CMT Architects Australia Pty Ltd v Waverley Council [2019] NSWLEC 1576 Hearing dates: Conciliation conference on 13 November 2019 Date of orders: 28 November 2019 Decision date: 28 November 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) The Applicant is granted leave to rely on the amended plans and documents referred to in Condition 1 of Annexure A. (2) The Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application occasioned by the amended plans in (1) above, in the amount of $20,000 within 28 days. (3) The appeal is upheld. (4) Development Application DA-548/2017 as amended which seeks consent for the demolition of existing buildings and construction of hotel/motel and retail/commercial development consisting of 14 guest rooms, retail/ commercial ground level and mezzanine level, landscaping and associated works is approved subject to the conditions contained in Annexure A. Catchwords: DEVELOPMENT APPLICATION – commercial premises- hotel/motel accommodation– conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Act Regulation 2000 Land and Environment Court Act 1979 Texts Cited: Waverley Development Control Plan 2012 Category: Principal judgment Parties: CMT Architects Australia Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: K Huxley (Solicitor) (Applicant) M Hanna (Solicitor) (Respondent) Solicitors: McCabe Curwood (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/233148 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the refusal of its development application DA-548/2017. The development application (as amended) seeks approval for the demolition of the existing buildings and construction of a hotel/motel and retail/commercial development consisting of 14 guest rooms, retail/ commercial ground level and mezzanine level as well as landscaping and associated works. The development is proposed at 139 Oxford Street, Bondi Junction (Lot 1, DP 175778 and Lot 1, DP 169732). 2. On the 18 December 2017, the Applicant lodged a development application with Waverley Council. Following the expiration of the deemed refusal period for the application, the Applicant appealed to the Court. 3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s34 of the Land and Environment Court Act 1979 (LEC Act), which was held on the 1 March 2019. By consent orders for a further conciliation conference were made and that conciliation conference was held on 13 November 2019. I presided over the further conciliation conference. Through the conciliation process, the parties have agreed an amended design for the proposed works. The agreed orders provide leave to the applicant to rely on this amended material in their development application. 4. Following the conciliation, an agreement under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The Applicant for the development application is not the owner of the land. Clause 49(1)(b) of the Environmental Planning and Assessment Act Regulation 2000 allows an application to be made and consent to be given to any person (other than the owner), so long as owners consent is provided with the application. A copy of such consent was provided to the Court. 2. The Development Application was appropriately notified by the Respondent in accordance with the Waverley Development Control Plan 2012 (DCP 2012) for the required period of 21 days. 3. The amended Development Application was notified in accordance with cl 2.6.1 of DCP 2012 for a period of 14 days. 4. The submissions received during the notification periods, and as part of the conciliation process, have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to rely on the amended plans and documents referred to in Condition 1 of Annexure A. 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application occasioned by the amended plans in (1) above, in the amount of $20,000 within 28 days. 3. The appeal is upheld. 4. Development Application DA-548/2017 as amended which seeks consent for the demolition of existing buildings and construction of hotel/motel and retail/commercial development consisting of 14 guest rooms, retail/ commercial ground level and mezzanine level, landscaping and associated works is approved subject to the conditions contained in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (580 KB) Plans (15.4 MB) ********** Amendments 28 January 2020 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties, orders of 28 November 2019 are amended so that the year identified in condition 1(j) and condition 1(i) is noted as 2019 rather than 2009 in the conditions of consent at Annexure A of the Court's orders. 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: 28 January 2020