Amarino Pty Ltd v Liverpool City Council

[2017] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:	Amarino Pty Ltd v Liverpool City Council [2017] NSWLEC 1035
Hearing dates:	Conciliation conference on 15 November & 9 December 2016, 12 January 2017
Date of orders:	01 February 2017
Decision date:	01 February 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: construction of a mixed use development - 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:	Amarino Pty Ltd (Applicant) Liverpool City Council (Respondent)
Representation:	Solicitors: Mr A Gadiel, Mills Oakley (Applicant) Mr A. Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/243484
Publication restriction:	No

Judgment

1. COMMISSIONER: This an appeal against the refusal of Development Application Number DA-1229/2015 for a mixed use development at Lot 5 in the subdivision of 29 DP 1044841, 501 Cowpasture Road, Len Walters Estate.

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. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the respondent’s costs thrown away as a result of the amended development application, in the sum of $8,500 within 28 days of the date of these Orders.

3. The appeal is upheld.

4. Development Application No. DA-1229/2015 lodged on 17 December 2015, as amended, for:

(i)   a mixed-used development incorporating the construction of:

1. a five (5) storey shop top housing development including 63 (27 x 1 bedroom AND 36 x 2 bedroom) apartments and associated car parking;

2. a supermarket, restaurant and commercial premises on proposed Lot 5 (being a Lot approved in the subdivision of Lot 1 DP 1210012) whose creation was authorised under DA-1106/2014 (Lot 5);

(ii)   the use of the proposed Lot 1 (being a Lot approved in the subdivision of Lot 1 DP 1210012) (Lot 1), Lot 2 (being a Lot approved in the subdivision of Lot 1 DP 1210012) (Lot 2), Lot 3 (being a Lot approved in the subdivision of Lot 1 DP 1210012) (Lot 3) and Lot 4 (being a Lot approved in the subdivision of Lot 1 DP 1210012) (Lot 4) for the purposes of non-residential car parking on Lot 5 and each of the other lots;

(iii)   the use of Lot 5 for the purposes of non-residential car parking for lots 1-4,

is approved subject to the conditions contained in Annexure “A”.

…………….

G Brown

Commissioner

243484.16 (C) (8.13 MB, pdf)

Decision last updated: 01 February 2017