Queenscliff Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1138

Land and Environment Court New South Wales

Medium Neutral Citation: Queenscliff Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1138 Hearing dates: Conciliation conference on 13 January 2020 and 25 February 2020 Date of orders: 25 March 2020 Decision date: 25 March 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: See orders at [9] Catchwords: DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55— Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Development Warringah Local Environmental Plan 2011 Texts Cited: Apartment Design Guidelines Category: Principal judgment Parties: Queenscliff Developments Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: D Loether (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)

Solicitors: Bartier Perry (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2019/298669 Publication restriction: No

Judgment 1. ACTING COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Northern Beaches Council (Council) of Development Application No DA219/0730 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The DA relates to land with a total area of 1,259.8m2 and identified as Lot 41 in DP300057 and Lot 4 in DP 345419 at 71 and 71A Queenscliff Road, Queenscliff (the site). The DA, as originally submitted to Council on 9 July 2019, sought consent for demolition of existing buildings, amalgamation of the two lots and construction of a four storey residential flat building comprising 15 units, two basement levels of parking for 32 cars and landscaping works. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference, held on 13 January 2020 and 25 February 2020. The conciliation conference commenced with a view on site and immediate surroundings. At the site view oral submissions were made by a number of residents, or their representatives, the majority of whom resided in the apartment building adjoining at 75 Queenscliff Road. 4. The original DA plans prepared by PBD Architects (Issue A dated 28.06.2019) were advertised between 27 July 2019 and 10 August 2019. Those plans were subsequently amended prior to the conciliation conference. Following the conciliation conference the parties reached an agreement, based on further amendments to the plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. 5. The main changes between the "Issue A" plans as originally submitted and the "Issue C" plans the subject of the s 34 agreement are: 1. An increase in the side boundary setbacks to a minimum of 4.5 metres, and increasing to 5.0m in part to improve articulation of the west and east elevations. 2. An increase in the street boundary setback in the south-west corner on Level 3 (unit 3.04) by 5.0 metres to ensure the building complies with the 11 metre height limit in clause 4.3 of Warringah Local Environmental Plan 2011 (WLEP 2011). 3. A revision of the floor plans / unit layouts on all levels resulting in a reduced number of units, from 15 to 14, and revised unit mix. The revised unit mix results in a reduction in the number of 1 bedroom units from 2 to 1 and 2 bedroom units from 6 to 2, and an increase in the number of 3 bedroom units from 7 to 12. 1. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph 7 below.