Abdul-Rahman v Strathfield Municipal Council

[2016] NSWLEC 1347

Land and Environment Court

New South Wales

Medium Neutral Citation:	Abdul-Rahman v Strathfield Municipal Council [2016] NSWLEC 1347
Hearing dates:	Conciliation conference on 14 June 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: Alterations and additions to an approved mixed-use development; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Youssef Abdul-Rahman (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Applicant: Mr V Conomos (Solicitor) Respondent: Ms P Hudson (Solicitor)   Solicitors: Applicant: Conomos Legal Respondent: Marsdens Law Group
File Number(s):	157801 of 2016
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, 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. The Applicant is given leave to amend the development application by substituting the following plans as the plans relied upon for the purpose of the development application:

0.1 Basement Level 04 prepared by Ghazi Al Ali Architect, Drawing No. A1500, Issue A dated 26 October 2015.

0.2 Level 07 Floor Plan prepared by Ghazi Al Ali Architect, Drawing No.1210, Issue D dated 30 June 2016.

0.3 Level 08 Floor Plan prepared by Ghazi Al Ali Architect, Drawing No.1211, Issue D dated 30 June 2016.

0.4 Roof Plan prepared by Ghazi Al Ali Architect, Drawing No.A1212, Issue C dated 30 June 2016.

0.5 North and South Elevation prepared by Ghazi Al Ali Architect, Drawing No.A1500, Issue D dated 30 June 2016.

0.6 East and West Elevation prepared by Ghazi Al Ali Architect, Drawing No.A1501, Issue D dated 30 June 2016.

0.7 Level 7 Common Area Open Space Planters, Drawing No. LPDA 15-413/ 1 Issue A prepared by Conzept Landscape Architects dated 25 November 2015.

0.8 Acoustic report No. 20C-09-0148-TRP-500093-8 dated 2 December 2015 prepared by VIPAC Engineers and Scientists Ltd.

0.9 BASIX Certificate No. 263454M_09 issued 8 August 2016.

0.10 Materials and Finishes Schedule Drawing No. A1501, Issue D dated 29 July 2016.

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days of the date of these orders.

3. The Applicant’s written request submitted pursuant to clause 4.6(3) of the Strathfield Local Environmental Plan 2012 in relation to the contravention of the development standard for height in clause 4.3(2) of the Strathfield Local Environmental Plan 2012 is accepted, and the request to contravene the development standard in clause 4.3(2) is upheld.

4. The appeal is upheld.

5. Development Consent is granted to Development Application No. 2016/004 for alterations and additions to an approved mixed use development, comprising a fourth level of basement car parking containing (64) additional parking spaces, a new area of rooftop common open space on level 7 and an additional (18) units across two (2) additional storeys (levels 7 and 8), on the land known as Lot 11 DP 1052760, Lots 11 and 33 Section 10 DP 400 and Lots B, C, and D DP 391764, 29-35 Burlington Road, Homebush, subject to the conditions as contained in Annexure “A”.

____________________________

Judy Fakes

Commissioner of the Court

157801.16 Fakes (C) (152 KB, pdf)