Balvest One Pty Limited v Inner West Council

[2016] NSWLEC 1396

Land and Environment Court

New South Wales

Medium Neutral Citation:	Balvest One Pty Limited v Inner West Council [2016] NSWLEC 1396
Hearing dates:	Conciliation conference on 24 August 2016
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	APPEAL: Modification of development consent; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Balvest One Pty Limited (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Michael Staunton (Applicant) Stephen Patterson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/00220119
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 Appeal is upheld.

2. Subject to Order (3) below, the Respondent is directed to issue a building certificate under s149A of the Environmental Planning and Assessment Act 1979 for the following works:

1. the installed glazed sliding doors to apartments 1, 2 & 3;

2. the private courtyard spaces to apartments 2 & 3 including raised timber decking and 1.8m high courtyard fencing;

3. the 1.8 high and 1.2m high side boundary fencing and the 1.2m high fencing to the front boundary and within the front setback area;

4. the paved area in the front building setback area adjacent to the sliding door entry to apartment 1;

5. the conversion of the centre room within the lean too structure at the rear of the premises from laundry to storage for exclusive use by the owner of apartment lot 3;

6. site landscaping including planter boxes;

7. fire safety works as per the Fire Safety Audit Assessment report by BCA Vision dated 24 May 2016;

at 13 Dover Street, Summer Hill.

3. The direction in order (2) above is subject to, as a precondition to the issue of the certificate, the performance of the following:

(i)    submission of:

a certificate of installation from the person responsible for the carpet recently laid within the common stairwells, providing evidence that the carpet satisfies the provisions of Specification C1.10 – Fire Hazard Properties of the Building Code of Australia for floor coverings;

(b) evidence, like a photograph which shows that the recently submitted Annual Fire Safety Statement for the building has been installed in a conspicuous area within the common foyer area, in accordance with s177 of the Environmental Planning and Assessment Act 1979;

(ii)    Removal of two rows of the pavers to the west and south of the paved area adjacent to the entry to apartment 1 so that the paved area is no greater than the area of 5 X 5 pavers and replacement of the removed pavers with grass.

(iii)    The communal laundry in the western most room of the lean too at the rear of the premises shall be refurbished so as to contain 3 tubs with taps and 3 washing machines and dryers as indicated on the approved plans the subject of development consent no. 10.2016.103.1.

(iv)    The side gate access to the front setback area will be fitted with a latch which will permit all owners of lots within the building to access the area.

4. The parties have liberty to apply on 7 days notice with respect to the performance of the matters required by paragraph (3) above.

…………….

Susan Dixon

Commissioner