Beaini Projects Pty Ltd v Cumberland Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Beaini Projects Pty Ltd v Cumberland Council [2018] NSWLEC 1603
Hearing dates:	Conciliation conference on 2 November 2018
Date of orders:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [20] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Holroyd Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Beaini Projects Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: A Cowper, Mills Oakley (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2018/190525
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Beaini Projects Pty Ltd (the Applicant) lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Cumberland Council (the Council) of development application DA-110/2018 (the application).

2. The application seeks consent under the EPA Act for the demolition of existing commercial buildings and the construction of a 12 storey mixed use (shop top housing) development comprising residential apartments above commercial tenancies with basement parking at Lot B DP 410947, being 108-120 Station Street, Wentworthville (the site).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. It is noted that the parties reference the site in the agreement as 108 Station Street.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

7. The Statement of Facts and Contentions (SFC) filed with the Court by the Council indicates that the site is located on the fringe of the Wentworthville Town Centre and is 310m from the railway station. It is predominantly zoned B2 Local Centre pursuant to the Holroyd Local Environmental Plan 2013 (the LEP). The balance of the site is zoned SP2 Infrastructure being land to be dedicated by the Applicant for a public lane. The proposed mixed use development is confined to…