Cday Electrical Services Pty Ltd v Burwood Council

Judgment

1. COMMISSIONER: This is an appeal, under s97 (1) of the Environmental Planning and Assessment Act 1979 (the Act), against the refusal of development application number 2015/95, determined by Burwood Council on 15 April 2016. The DA sought approval for the use of the site at 62-66 Parramatta Rd, Croydon (the site) as a food and beverage premises with associated parking and amenities.
2. The appeal was subject to mandatory conciliation on 8 August 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). Following the submission of amended documentation arising from the conciliation the matter was considered by the Council and authority was not provided to enter into agreement under s34 of the LEC Act.
3. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34(4)(b) and the proceedings were dealt with as a hearing held forthwith, pursuant to s 34(4)(b)(ii) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s34(4)(b)(ii) LEC Act.
4. Prior to the hearing leave was granted by the Court, on September 2 2016, for the applicant to rely on amended plans that had been informed by the conciliation and expert joint conferencing process. It was agreed by the representative of Council that the: amended plans; stormwater details; plan of management for the operations; and the conditions proposed for any consent, address the issues initially raised by the council and detailed in the statement of facts and contentions (Exhibit 1). In the Councils view, the matters outstanding for determination by the Court relate to the issues raised in the resident submissions.
5. As the matter proceeded to hearing s39 of the LEC Act provides the Court all the functions and discretions of the previous body whose decision is the subject of the appeal.
6. The issues before the Court therefore are: whether the agreements between the experts are well founded and satisfy the matters for consideration in s79C (1)(a)-(c) of the Act; and to consider the matters raised the submissions made by the public in response to the notification of the development application (s97C(d) and (e) in the determining whether it is appropriate to grant consent to the application.