Astoria Capital Pty Ltd ATF the Delta Funds Family Trust v Bayside Council

[2018] NSWLEC 1527

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Astoria Capital Pty Ltd ATF The Delta Funds Family Trust v Bayside Council [2018] NSWLEC 1527
Hearing dates:	Conciliation conference on 5 October 2018
Date of orders:	08 October 2018
Decision date:	08 October 2018
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:	Astoria Capital Pty Ltd ATF The Delta Funds Family Trust (Applicant) Bayside Council (Respondent)
Representation:	Solicitors: M Sonter, Mills Oakley (Applicant) A Epstein, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/47657
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely on the amended drawings dated 19 September 2018 (as referred to in condition 1 of Annexure “A”) for the purpose of the development application.

2. The appeal is upheld.

3. Development application 10.2017.1108.1 for the demolition of existing buildings and construction of one commercial tenancy and a boarding house with 30 rooms at 1455 Botany Road and 1 and 3 Hastings Street, Botany NSW is approved subject to the conditions contained in Annexure “A”.

4. The Applicant is to pay the respondent’s costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $22,000 within 28 days.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (C)

Annexure B (Plans)

Amendments

11 October 2018 - Pursuant to UCPR 36.17, the slip rule, amend orders of 08 October 2018 so that Order 4 (3) now reads as follows:

(3) Development application 10.2017.1108.1 for the demolition of existing buildings and construction of one commercial tenancy and a boarding house with 30 rooms at 1455 Botany Road and 1 and 3 Hastings Street, Botany NSW is approved subject to the conditions contained in Annexure "A".