888 New Canterbury Road Pty Ltd v Inner West Council

[2016] NSWLEC 1649

Land and Environment Court

New South Wales

Medium Neutral Citation:	888 New Canterbury Road Pty Ltd v Inner West Council [2016] NSWLEC 1649
Hearing dates:	Conciliation conference on 16 November 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	888 New Canterbury Road Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: Mr Whealy Mills Oakley (Applicant) Inner West Council(Respondent)
File Number(s):	2016/223874, 2016/223858
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This matter is two appeals hat were heard together. Both matters are lodged pursuant to the provisions of s 97(1)(a) of the Environmental Planning and Assessment Act 1979 against the refusal of a modification application DA/201400477.01 and DA/201400477.02. The modification application sough to amend conditions that required: the undergrounding of power (condition 120 & 150); and matters in relation to the provision of an electrical substation (the proposal) within an approved mixed use development at 429-449 New Canterbury Road, Dulwich Hill (the site).

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. In relation to appeal 2016/223874 (amendment of condition 120 & 150) the final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Modification Application No. DA201400477.01 for the amendment of conditions 120 and 150 relating to overhead power cabling is approved subject to the modified conditions contained in Annexure “A”.

3. As a consequence of order 2(b) and the modifications to Development Consent No. DA2014/00477 approved by the Court in proceedings 2016/223858, Development Consent No. DA2014/00477 is now subject to the consolidated, modified conditions of development consent set out in Annexure “B”.

4. Each party pays its own costs of the proceedings.

6. In relation to appeal 2016/223858 (electrical substation) the final orders to give effort to the parties agreement are

1. The applicant is granted leave to rely upon the amended architectural plans and elevations referred to in paragraph 1b. of the document titled Modifications to the conditions of consent in Annexure “A”.

2. The appeal is upheld.

3. Modification Application No. DA201400477.02 to modify Development Consent No. DA2014/00477 for the relocation of the substation within the existing building facade is determined by approving the modifications set out in Annexure “A”.

4. As a consequence of order 2(c) and the modifications to the Development Consent No. DA2014/00477 approved by the Court in proceedings 2016/223874, Development Consent No. DA2014/00477 is now subject to the consolidated, modified conditions of development consent set out in Annexure “B”.

5. Each party pays its own costs of the proceedings.

…………….

D M Dickson

Commissioner

223858.16 Dickson - Annexure A (67.9 KB, pdf)

223874.16 Dickson - Annexure A (71.6 KB, pdf)

223874.16 Dickson - Annexure B (402 KB, pdf)

223874 & 223858.16 Dickson - Dulwich Hill - S34 - 205 - Substation louvre (29.9 KB, pdf)

223874 & 223858.16 Dickson - Dulwich Hill - S34 - 201 - Southwest Elevation rev 2 (251 KB, pdf)

223874 & 223858.16 Dickson - Dulwich Hill - S34 - 200 - Northeast Elevation rev 3 (227 KB, pdf)

223874 & 223858.16 Dickson - Dulwich Hill - S34 - 100 - Ground floor plan rev.3 (147 KB, pdf)

223874 & 223858.16 Dickson - Dulwich Hill - S34 - 011 - Basement 1 plan rev.4 (61.3 KB, pdf)