Land and Environment Court New South Wales Medium Neutral Citation: Wehbi v Bayside Council [2020] NSWLEC 1002 Hearing dates: Conciliation conference on 20 December 2019 Date of orders: 07 January 2020 Decision date: 07 January 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders [10] below Catchwords: DEVELOPMENT 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: Mohamad Wehbi (Applicant) Bayside Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) A Epstein (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/76005 Publication restriction: No Judgment 1. COMMISSIONER: Mohamad Wehbi (the Applicant) has appealed the refusal by Bayside Council (the Respondent) of his development application (DA 2017/514) which sought consent for the demolition of existing structure, the subdivision of land into two lots and construction of two dwellings on each lot. (the Proposed Development), at 61 Illife St, Bexley (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EP&A 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 was held on 20 December 2019, and 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. 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 4.16 of the EPA Act to grant consent to the development application. 6. The parties have explained how the Applicant's amended plans had satisfied relevant jurisdictional matters, including in relation to the zoning of the land, and development standards pertaining to the maximum permitted floor space ratio and minimum lot size, and the compliance of the Applicant's proposed development, as amended, with those standards. 7. The parties have further explained how their contentions in this matter have been resolved by the Applicant's amended plans, and I am satisfied that there are no further jurisdictional prerequisites that must be satisfied before the functions under s 4.16 of the EP&A Act can be exercised by the Court. 8. 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. 9. 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. 10. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended plans and documents, which are attached to this agreement and marked Annexure "A": Description Reference No. Date Revision Prepared by Architectural plans Proposed site plan 2.1.6 18/11/2019 06 Planzone Setback Plan 2.1.7 18/11/2019 06 Planzone Driveway Grades 2.1.8 18/11/2019 06 Planzone Site Plan – Stage 1 2.2.1 18/11/2019 06 Planzone FSR Calculations Stage 1 2.2.2 18/11/2019 06 Planzone Ground Floor Plan – Stage 1 2.2.3 18/11/2019 06 Planzone Ground Floor Detail – Stage 1 2.2.4 18/11/2019 06 Planzone Roof Plan – Stage 1 2.2.5 18/11/2019 06 Planzone Northern Elevation – Stage 1 2.2.6 18/11/2019 06 Planzone Southern Elevation – Stage 1 2.2.7 18/11/2019 06 Planzone Eastern Elevation - Stage 1 2.2.8 18/11/2019 06 Planzone Western Elevation – Stage 1 2.2.9 18/11/2019 06 Planzone Section – Stage 1 2.2.10 18/11/2019 06 Planzone Driveway and Retaining Wall Section 2.2.11 18/11/2019 06 Planzone Schedule and Finishes – Stage 1 2.2.12 18/11/2019 06 Planzone Site plan – Stage 2 2.3.1 18/11/2019 06 Planzone FSR Calculations – Stage 2 2.3.2 18/11/2019 06 Planzone Ground Floor Plan – Stage 2 2.3.3 18/11/2019 06 Planzone Ground Floor Detail – Stage 2 2.3.4 18/11/2019 06 Planzone First Floor Plan – Stage 2 2.3.5 18/11/2019 06 Planzone First Floor Detail – Stage 2 2.3.6 18/11/2019 06 Planzone Roof Plan – Stage 2 2.3.7 18/11/2019 06 Planzone Elevation – Lot 3 – North and South 2.3.8 18/11/2019 06 Planzone Elevation – Lot 3 – East and West 2.3.9 18/11/2019 06 Planzone Elevation – Lot 4 – North and South 2.3.10 18/11/2019 06 Planzone Elevation – Lot 4 – East and West 2.3.11 18/11/2019 06 Planzone Elevation Stage 2 – N & S 2.3.12 18/11/2019 06 Planzone Section – Lot 2 & 3 Longitudinal 2.3.13 18/11/2019 06 Planzone Section – Lot 2 & 3 Cross Section 2.3.14 18/11/2019 06 Planzone Schedule & Finishes – Stage 2 2.3.15 18/11/2019 06 Planzone Streetscape Elevation - Stage 2 2.3.16 18/11/2019 06 Planzone Ground Floor Plan 2.4.3 18/11/2019 06 Planzone First Floor Plan 2.4.4 18/11/2019 06 Planzone Roof Plan 2.4.5 18/11/2019 06 Planzone Elevation – North & South 2.4.6 18/11/2019 06 Planzone Subdivision plans Stage 1 – Subdivision 2.1.10 4/12/2019 7 Planzone Stage 2 – Subdivision 2.1.11 4/12/19 7 Planzone Landscape Plans Landscape Plan 17­3553 L01 22/11/19 B Zenith Landscape Designs Pty Ltd Landscape Plan 17­3553 L02 22/11/19 B Zenith Landscape Designs Pty Ltd Landscape Plan 17­3553 L03 22/11/19 B Zenith Landscape Designs Pty Ltd Landscape Plan 17­3553 L04 22/11/19 B Zenith Landscape Designs Pty Ltd Landscape Plan 17­3553 L05 22/11/19 B Zenith Landscape Designs Pty Ltd Civil Engineering Plans General Plan SW-00 20/11/2019 A Statiker Drainage Plan SW-01 20/11/2019 A Statiker OSD Catchment Plan SW-02 20/11/2019 A Statiker Stormwater Plan SW-03 20/11/2019 A Statiker Stormwater Plan SW-04 20/11/2019 A Statiker Sediment Control Plan SW-05 20/11/2019 A Statiker 1. The Applicant is to pay the Respondent's costs thrown away as a result of the Applicant amending the application in the amount of $16,800.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days. 2. The appeal is upheld. 3. Development Application DA-2017/514 for the demolition of existing structures, the subdivision of the existing lot into two individual lots and construction of 2 x dual occupancies and a further subdivision to create 3 lots at 61 Iliffe St, Bexley is approved subject to the conditions contained in Annexure "B" hereto. ……………………… M Chilcott Commissioner of the Court Annexure A (10.2 MB, pdf) Annexure B (161 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: 09 January 2020