Land and Environment Court New South Wales Medium Neutral Citation: Vimresh Pty Ltd v Northern Beaches Council [2019] NSWLEC 1613 Hearing dates: Conciliation conference on 18 November 2019 Date of orders: 11 December 2019 Decision date: 11 December 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The applicant is granted leave to amend the development application and rely upon the following plans and drawings as referred to in the conditions of consent at Annexure "B" and listed and attached at Annexure "A". (2) The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is upheld. (4) Development Application DA2017/1364 dated 19 December 2018 for the demolition of an existing building and construction of a seniors housing development and strata subdivision at 14 Ponsonby Parade, Seaforth as amended with the plans and drawings attached at Annexure "A", is approved subject to the conditions annexed to this judgment in Annexure "B". Catchwords: DEVELOPMENT APPLICATION – seniors housing – view loss – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Manly Local Environmental Plan 2013 Texts Cited: Manly Development Control Plan 2013 Category: Principal judgment Parties: Vimresh Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant) F Berglund (Respondent) Solicitors: HWL Ebsworth (Applicant) Northern Beaches Council (Respondent) File Number(s): 2019/97413 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2017/1364 by Northern Beaches Council (hereafter the Council) for the demolition of existing structures, and construction of a seniors housing development on Lot 22 DP 7577, also known as 14 Ponsonby Parade, Seaforth (hereafter the site). 2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 November 2019. I presided over the conciliation conference, which started onsite. There were seven objectors heard at the conciliation on issues that related to: privacy; drainage; character; setbacks; parking and traffic; view loss; bulk and scale; and overshadowing. 4. Following the conciliation conference, during an adjournment, the applicant sought to amend the associated plans to the DA. Based on these amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision of the parties is to uphold the appeal and grant consent to DA 2017/1364 with conditions. 5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function of assessment under s 4.15 of the EPA Act and being satisfied, pursuant to s 4.16(1)(a) to grant consent to DA 2017/1364, with amended plans in Annexure A and conditions, as described in Annexure B. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, in consideration of s 4.15(1) of the EPA Act, as consistency with the Manly Local Environmental Plan 2013 (MLEP). In addition, the Manly Development Control Plan 2013 (MDCP) is of consideration to grant consent to the DA. 7. The requirements of the MLEP, specifically cl 4.4, as raised by the objectors, have been considered by the parties and the parties are satisfied, based on the amended plans and documents supporting the DA. The numeric requirements for floor space ratio (FSR) have been addressed and are satisfied in the amended plans that support the DA. The proposed development is considered to be in character with the local area, which the parties agree is consistent with the objectives of the R2 Low Density Residential zone. 8. The parties agree that the requirements of the MDCP are complied with, based on the amended plans and conditions of consent. Based on the amended plans, the contention of view loss for adjoining residents is addressed to the satisfaction of the parties, as required in the MDCP. The parties also agree that the other issues raised by objectors, specifically overshadowing, privacy and setbacks are addressed to their satisfaction based on the amended plans. 9. The proposed development was required to be publicly notified, pursuant to the MDCP, and the parties agree that the issues raised by the residents have been resolved to their satisfaction. 10. Based on the amended plans and supporting documents to the DA, the contention (of view loss) as expressed in the Statement of Facts and Contentions is resolved to the satisfaction of the parties. 11. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 2017/1364 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 12. 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. 13. The Court orders that: 1. The applicant is granted leave to amend the development application and rely upon the following plans and drawings as referred to in the conditions of consent at Annexure "B" and listed and attached at Annexure "A". 2. The applicant is to pay the respondent's costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The appeal is upheld. 4. Development Application DA2017/1364 dated 19 December 2018 for the demolition of an existing building and construction of a seniors housing development and strata subdivision at 14 Ponsonby Parade, Seaforth as amended with the plans and drawings attached at Annexure "A", is approved subject to the conditions annexed to this judgment in Annexure "B". ………………………………. S Bish Commissioner of the Court Annexure A (11.3 KB) Annexure B (210 KB) Plans (5.33 MB) ********** 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: 17 December 2019