Bassil v Cumberland Council

[2016] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bassil v Cumberland Council [2016] NSWLEC 1271
Hearing dates:	Conciliation conference on 18 February 2016
Date of orders:	28 June 2016
Decision date:	28 June 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: Mixed use development; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Joseph Bassil (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: Mr P Clay SC (Applicant) Solicitors: Mr P Saab, Macquarie Lawyers (Applicant) Ms P Hudson, Marsdens Law Group (Respondent)
File Number(s):	2016/157706
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 are:

1. The Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

1. Architectural Plans prepared by Casa-Bella Design Associates Pty, Project No. 1-67P-14, Sheet No. 1 – 19, Issue D, dated 23 February 2016;

2. Traffic management plans prepared by PeopleTrans, Drawing Nos. 14S260-CS-11-V1-01 and 14S260-CS-11-V1-02m, Sheets 01 and 02 of 05, dated 5 April 2016; Drawing No. 14S260-CS-12-04_V1, Sheet No. 01 of 01, dated 6 June 2016;

3. Stormwater plans prepared by MLE Design Pty Ltd, Job No. 114GWH/015, Drawing No. DA01–STORM – DA07–STORM (inclusive), Issue D and E, dated 12 February 2016 and 26 February 2016;

4. Landscape Plan prepared by Monaco Designs PL, Job No. 3598, Sheet No. 1 of 1, dated 8 October 2015;

5. Transport Impact Assessment prepared by PeopleTrans, Job No. 14S260, Issue C, dated 2 March 2016;

6. Road Traffic Noise Intrusion Assessment prepared by Day Design Pty Ltd, Report No. 5328-1-2R, Revision B, dated 7 October 2015;

7. Environmental Noise Assessment prepared by Day Design Pty Ltd, Report No. 5328-1-1R Revision C, dated 3 March 2016 and email correspondence prepared by Day Design Pty Ltd, dated 6 June 2016;

8. Construction Noise Management Plan prepared by Day Design Pty Ltd, Report No. 5328-1.3R, dated 3 March 2016;

9. Waste Management Plan prepared by Joseph Bassil, dated 15 October 2015 and Addendum to Waste Management Plan, dated 2 October 2015;

10. Schedule of Finishes prepared by Casa-Bella Design Associates Pty, Project No. 1-67P-14, Sheet No. 27, Issue B, dated 30 May 2015;

11. BASIX Certificate No. 554492M_02, dated 27 September 2015;

12. Correspondence prepared by the NSW Police Holroyd Local Area Command, Reference No. D/2015/555108, dated 25 November 2015 (copy attached), and all conditions contained therein; and

13. Correspondence prepared by the NSW Roads and Maritime Services, Reference No. SYD13/01374/03 (A11115772), dated 17 December 2015 (copy attached), and all conditions contained therein; and

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days of the date of these orders.

3. The Applicant’s written request submitted pursuant to clause 4.6(3) of the Holroyd Local Environmental Plan 2013 in relation to the contravention of the development standard for height in clause 4.3(2) of Holroyd Local Environmental Plan 2013 is accepted, and the request to contravene the development standard in clause 4.3(2) is upheld.

4. The appeal is upheld.

5. Development consent is granted to Development Application No. DA2014/334 for the demolition of existing structures and the construction of a part 4 and part 7 storey mixed use development comprising 64 residential units, 2 commercial tenancies and basement parking for 93 cars on the land described as is Lots 6 & 7, DP 1038290 and Lot 71, DP 1077407 with a street address of 114-116 Great Western Highway & 17B Booth Street, Westmead, subject to the conditions of consent annexed hereto and marked “A”.

…………….

Linda Pearson

Commissioner

157706.16 Pearson (C) (476 KB, pdf)

Decision last updated: 29 June 2016