89 Ebley Street Pty Limited v Waverley Council

[2017] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:	89 Ebley Street Pty Limited v Waverley Council [2017] NSWLEC 1344
Hearing dates:	Conciliation conference on 30 June 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Jurisdiction:	Class 1
Before:	Smithson 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:	89 Ebley Street Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Mr M Sonter (Applicant) Mr M Staunton (Barrister) (Respondent) Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/207255
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 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”.

2. 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.

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 Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely upon the following amended architectural plans, landscape plan and BASIX certificate referred to in condition 1 of Annexure “A”.

2. The clause 4.6 variation request in respect of clause 4.3 (building height) and clause 4.4 (floor space ratio) are upheld.

3. The Appeal is upheld.

4. Development Application No. DA 572/2015 for proposed demolition of existing dwellings, construction of a new mixed use building with ground floor retail (excluding use) and residential apartments above, rebuilding of Cock ’n ’Bull Hotel (excluding fit-out but including use of hotel) and associated parking and landscaping on lots 1 & 2 in DP826800 and Lots 18-21 & 23 is approved subject to the conditions set out in Annexure “A”.

…………….

Commissioner J Smithson

207255.16 Smithson (C) (372 KB, pdf)