Nakhle v Woollahra Municipal Council [2020] NSWLEC 1188

Land and Environment Court New South Wales

Medium Neutral Citation: Nakhle v Woollahra Municipal Council [2020] NSWLEC 1188 Hearing dates: Conciliation conference on 3 February 2020 Date of orders: 21 April 2020 Decision date: 21 April 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [48] 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 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014 Texts Cited: Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Paulus Saleem Nakhle (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) M Harker (Solicitor) (Respondent)

Solicitors: Bartier Perry Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/173458 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council's refusal of Development Application No. DA2017/440/1 for demolition of an existing residential flat building and construction of a new three-storey residential flat building containing six dwellings and basement parking on land identified as Lot C in Deposited Plan 448601 and known as 12 Kent Road, Rose Bay (site). 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 3 February 2020. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court upholding the appeal and granting development consent to the amended development application subject to the conditions in Annexure B. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one that the Court could have made in the proper exercise of its functions. In this case, the parties' decision involves the Court exercising the functions under s 4.16 of the EPA Act. Before this function can be exercised, the Court needs to be satisfied that the adjoining owners at 10 Kent Road consent to the proposed works on the shared driveway; and, that the variation of the floor space ratio (FSR) and height of buildings development standards in the Woollahra Local Environmental Plan 2014 (LEP) are appropriate in the circumstances of this case under cl 4.6 of the LEP.