Amber Sydney Apartments Pty Limited v Ku-ring-gai Council

[2018] NSWLEC 1304

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Amber Sydney Apartments Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1304
Hearing dates:	Conciliation conference on 3, 31 May, 18 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwellings and the construction of a residential flat building; 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:	Amber Sydney Apartments Pty Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Mr A Pickles SC, Lindsay Taylor Lawyers (Applicant) Mr J P Merlino, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/356529
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Amber Sydney Apartments Pty Limited against a deemed refusal by Ku-ring-gai Council of development application DA0403/17 for the demolition of the existing dwellings and the construction of a residential flat building comprising 31 dwellings, including 14 units of affordable housing at 4-8 Marian Street, Killara.

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the amended plans and documents listed in condition 1 of Annexure "A" hereto; and

2. The Applicant's written request for a variation to the height of building development standard pursuant to clause 4.6 of the Ku-Ring-Gai Local Environmental Plan 2015 is upheld.

3. The Applicant is to pay the Respondent's costs pursuant to s8.15 (3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

4. The appeal is upheld.

5. Application No. DA0403/17 for demolition of two dwellings and construction of a residential flat building proposing 31 apartments and 45 basement car spaces with 14 of the apartments being affordable housing, is approved subject to the conditions annexed and marked “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (232 KB, pdf)

Plans 1 (3.28 MB, pdf)

Plans 2 (8.04 MB, pdf)

Plans 3 (9.04 MB, pdf)

Plans 4 (4.35 MB, pdf)

Plans 5 (1.90 MB, pdf)

Amendments

04 July 2018 - Plans annexed.