888 New Canterbury Road Pty Ltd ATF the 888 New Canterbury Unit Trust v Inner West Council

[2018] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:	888 New Canterbury Road Pty Ltd ATF The 888 New Canterbury Unit Trust v Inner West Council [2018] NSWLEC 1047
Hearing dates:	Conciliation conference on 29 January 2018
Date of orders:	13 February 2018
Decision date:	13 February 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	MODIFICATION APPLICATION: modify the basement storage ramp and access stairs, consolidate the currently approved seven (7) ground floor retail tenancies into one (1) tenancy for use as hardware and building supplies store; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	888 New Canterbury Road Pty Ltd ATF The 888 New Canterbury Unit Trust (Applicant) Inner West Council (Respondent)
Representation:	Solicitor: Mr M Sonter, Mills Oakley (Applicant) Ms C Morton, Sparke Helmore (Respondent)
File Number(s):	2017/248530
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification application no DA2014/00477.04 to amend development application no. DA2014/00477 for partial demolition of existing improvements and construction of a mixed use development which seeks to modify the basement storage ramp and access stairs, consolidate the currently approved seven (7) ground floor retail tenancies into one (1) tenancy for use as a Sydney Tools hardware and building supplies store and provide a consistent FFL, associated amendments to car parking and loading facility, amenities and internal reconfigurations at 429-449 New Canterbury Road, Dulwich Hill.

2. In this matter, at or after 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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely on the amended plans and documents as referred to in the conditions of consent contained in Annexure “A”.

2. The Applicant is to pay the Respondent’s costs in the amount of $5,000 within 28 days of these orders being made.

3. The appeal is upheld.

4. Modification application no DA2014/00477.04 to amend development application no. DA2014/00477 for partial demolition of existing improvements and construction of a mixed use development which seeks to modify the basement storage ramp and access stairs, consolidate the currently approved seven (7) ground floor retail tenancies into one (1) tenancy for use as a Sydney Tools hardware and building supplies store and provide a consistent FFL, associated amendments to car parking and loading facility, amenities and internal reconfigurations at 429-449 New Canterbury Road, Dulwich Hill is approved subject to the consolidated conditions contained at annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (220 KB, pdf)