Land and Environment Court New South Wales Medium Neutral Citation: Guido Developments Pty Ltd v Wollongong City Council [2019] NSWLEC 1641 Hearing dates: Conciliation conference on 10 December 2019 Date of orders: 24 December 2019 Decision date: 24 December 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to rely on amended plans 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 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $4,580.00 payable within 28 days of this agreement. (3) The appeal is upheld. (4) Development Consent is granted to Development Application No. 2018/177 seeking consent for demolition of the existing dwelling and construction of 5 unit multi-dwelling housing with 5 lot strata subdivision on Lot 21 DP 26939 otherwise known as 14 Guest Avenue Fairy Meadow, subject to the conditions of consent annexed hereto and marked 'A'. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Water Management Act 2000 Wollongong Local Environmental Plan 2009 Cases Cited: Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312 Texts Cited: Wollongong Development Control Plan 2009 Category: Principal judgment Parties: Guido Developments Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Counsel: N Hammond (Applicant) J Reilly (Solicitor) (Respondent) Solicitors: RMB Lawyers (Applicant) Wollongong City Council (Respondent) File Number(s): 2018/293060 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 actual refusal of its development application DA-2018/177. The development application seeks approval for the demolition of an existing dwelling and construction of a 5 unit multi-dwelling housing with 5 lot strata subdivision. The development is proposed at 14 Guest Avenue, Fairy Meadow (Lot 21 DP 26939). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 1 May 2019. At the request of the parties a further conciliation conference was held on 10 December 2019. I presided over the further conciliation conferences. 3. Following the further 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. 4. 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 Applicants name on the DA form is PRD Architects. The Applicant named in the Class 1 application is Guido Developments Pty Ltd ACN 610 425 842. Guido Developments Pty Ltd is the owner of the land, and Anthony and Kelly Jane Guido provided owners consent by way of signature on the DA form. The relevant title search and company searches have been provided to the Court. I am satisfied that consistent with the decision of the Court in Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312 at [42]–[43] where a development application is signed by an agent (in this case an Architect) who is acting on behalf of a principal, the principal is entitle to commence a Class 1 appeal. 2. The development application is integrated development under s91 of the EPA Act as it requires a controlled activity approval under the Water Management Act 2000. Concurrence has been provided by the Department of Primary Industries (Water), whose conditions form part of the consent. 3. The development application was notified by the Respondent for a period, in accordance with the Wollongong Development Control Plan 2009. The amended notification was also renotified. I am satisfied those submissions have been considered. 4. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 888387M_03 in compliance with the instrument. 5. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development and the provisions of the Regulation. The Applicant has filed a Design Verification Statement that meets the requirements of cll 50(1AB) and 143A of the Regulation 6. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land the applicant submitted a Detailed Site Investigation report. That report concludes that management of asbestos is required and that a remediation action plan be prepared. Those requirements are included as conditions of consent. 7. Pursuant with the provisions of the Wollongong Local Environmental Plan 2009 (WLEP), the site is zoned R2 Low Density Residential Development. The proposed development, multi dwelling housing, is permissible with consent. Having regard to the objectives of the zone I am satisfied that the development provides for the housing needs of the community and is consistent with a low density residential environment. 8. The proposed development complies with the remaining development standards in WLEP. I accept the parties submission that cl 7.14 is satisfied as the site area on which the development is to be carried out is more than 18m wide. 9. In deciding whether to grant development consent to the application, I have given consideration to the matters at cl 7.2 and cl 7.4 of WLEP. I am satisfied that the development is above the floor planning level and will not have any adverse impact on the flood plain. Further, I am satisfied that the development will not have any adverse impact on riparian lands. 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 amended plans 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 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the total amount of $4,580.00 payable within 28 days of this agreement. 3. The appeal is upheld. 4. Development Consent is granted to Development Application No. 2018/177 seeking consent for demolition of the existing dwelling and construction of 5 unit multi-dwelling housing with 5 lot strata subdivision on Lot 21 DP 26939 otherwise known as 14 Guest Avenue Fairy Meadow, subject to the conditions of consent annexed hereto and marked 'A'. ……………………………… D M Dickson Commissioner of the Court Annexure A (140 KB, pdf) ********** 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: 07 January 2020