86 Dunning Avenue Pty Ltd v North Sydney Council

[2018] NSWLEC 1347

Land and Environment Court

New South Wales

Medium Neutral Citation:	86 Dunning Avenue Pty Ltd v North Sydney Council [2018] NSWLEC 1347
Hearing dates:	Conciliation conference on 6 July 2018
Date of orders:	06 July 2018
Decision date:	06 July 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – residential flat building - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	86 Dunning Avenue Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Solicitors: P Clarke, Hones Lawyers (Applicant) M Winram, Maddocks Lawyers (Respondent)
File Number(s):	2017/363831
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by 86 Dunning Avenue Pty Ltd against the actual refusal by North Sydney Council of Development Application DA2016/413 for the demolition of existing buildings and construction of a residential flat building with basement parking 84-90 Atchison Street, Crows Nest (Lots 84-90 DP 2872).

2. In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 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”.

3. The Court Act 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely on the amended plans and documents that are identified in condition A1 in Annexure ‘A’.

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 agreed in the sum of $23,818.00 within 28 days of the date of the making of these Orders.

3. The appeal is upheld.

4. Development application no. DA 413/16 for the demolition of the existing commercial premises and construction of a 5 storey residential flat building containing 32 apartments, with basement parking for 42 vehicles is approved subject to the conditions of consent in Annexure ‘A’.

……………………….

Commissioner Gray

Annexure A (492 KB, pdf)

Amended Plans - Condition A1 (17.3 MB, pdf)