Applebee 29 Pty Limited v Inner West Council

[2018] NSWLEC 1114

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Applebee 29 Pty Limited v Inner West Council [2018] NSWLEC 1114
Hearing dates:	Conciliation conference on 30 January, 22 February and 2 March 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing factory building; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Applebee 29 Pty Limited (Applicant) Inner West Council (Respondent)
Representation:	Ms. J Reid (Applicant) Mr M Bonnano (Respondent)
File Number(s):	2017/257933
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA201700152 for alterations and additions to an existing factory building at 2-22 Hutchinson Street and 27-33 Applebee Street St Peters.

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. Leave is granted to rely on the amended plans prepared by Candalepas Associates:

Plan, Revision and Issue No.	Plan/Document Name	Date
DA-1000 Revision E	Cover Sheet	28/02/2018
DA-1001 Revision E	Site Analysis	28/02/2018
DA-1101 Revision E	Ground Floor Plan	28/02/2018
DA-1102 Revision E	Level One Plan	28/02/2018
DA-1103 Revision E	Typical Floor Plan	28/02/2018
DA-1104 Revision E	Level Four Plan	28/02/2018
DA-1105 Revision E	Roof Plan	28/02/2018
DA-1201 Revision E	Section A	28/02/2018
DA-1301 Revision E	Elevation North	28/02/2018
DA-1302 Revision E	Elevation East	28/02/2018
DA-1303 Revision E	Elevation South	28/02/2018
DA-1304 Revision E	Elevation South-West	28/02/2018
DA-1350 Revision E	Hutchinson Street Context Elevation	28/02/2018
DA-1351 Revision E	Applebee Street Context Elevation	28/02/2018
DA-1601 Revision E	Amenity Calculations	28/02/2018
DA-1851 Revision E	Development Calculations	28/02/2018
DA-1950 Revision E	Adaptable Unit Layout	28/02/2018

2. The appeal is upheld

3. Development application D/2017/00152 is approved subject to the conditions in Annexure A to this agreement.

4. The applicant is to pay the Council’s costs thrown away as a result of the amended plans pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $9,000 within 28 days.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (224 KB, pdf)

Amendments

31 May 2018 - Pursuant to UCPR 36.17, the slip rule, amend Orders of 6 March 2018, correction to Annexure A at conditions (32) and (52).