Development Application Appeal Upheld with Modifications

In a conciliation conference, an agreement was reached between the parties regarding a development application. The appeal was upheld, and the development consent was approved with specific modifications to conditions of consent.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v Northern Beaches Council [2017] NSWLEC 1356 Hearing dates: Conciliation conference on 7 July 2017 Date of orders: 07 July 2017 Decision date: 07 July 2017 Jurisdiction: Class 1 Before: [NAME] Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and [ADDRESS] 1979 Category: Principal judgment Parties: [COMPANY] (Applicant) Northern Beaches Council (Respondent) Representation: [NAME] (agent) (Applicant) [NAME] (Respondent)

Solicitors: [redacted] [NAME] (Respondent) File Number(s): 2017/144927 Publication restriction: No

Judgment 1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and [ADDRESS] 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 2. [ADDRESS] also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties' agreement under s34(3) of the Land and [ADDRESS] 1979 are:

1. The appeal is upheld.

2. Development Consent DA2017/0016 issued by Northern Beaches Council on 12 April 2017 is approved, subject to the following changes to conditions of consent, annexed hereto and marked "A": A. Amend the "Proposed Development:", description in the Notice of Determination, to read as follows: "Proposed Development: Demolition works and construction of a service station with a neighbourhood shop, associated underground tanks, carparking, landscaping and signage" B. Amend Condition No.5 "Occupancy", to read as follows: "5.OccupancyNothing in this consent shall authorise the use of site/onsite structures/units/tenancies as detailed on the approved plans for any land use of the site beyond the definition of a "service station" including a "neighbourhood shop". A service station means a building or place used for the sale by retail of fuels and lubricants for motor vehicles, whether or not the building or place is also used for any one or more of the following: 1. the ancillary sale by retail of spare parts and accessories for motor vehicles, 2. the cleaning of motor vehicles, 3. installation of accessories, 4. inspecting, repairing and servicing of motor vehicles (other than body building, panel beating, spray painting, or chassis restoration), 5. The ancillary retail selling or hiring of general merchandise or services or both. (Development is defined by the Warringah Local Environment Plan (WLEP) 2011 (as amended) Dictionary) Any variation to the approved land use and/occupancy of any component beyond the scope of the above definition, including "neighbourhood shop" limitations specified for the site under Schedule 1 Additional Permitted Uses of the Warringah LEP 2011, will require the submission to Council of a new development application. Reason: To ensure compliance with the terms of this consent. (DACPLB03)" C. Delete condition No.18 "Provision of [ADDRESS]", to read as follows: "18. [Deleted]" ………………………. Commissioner [NAME] 144927.17 [NAME] (C) (883 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: 10 July 2017