Benmill Pty Ltd v The Council of the City of Sydney
[2017] NSWLEC 1385
•20 July 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Benmill Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1385 Hearing dates: Conciliation conference on 18 July 2017 Date of orders: 20 July 2017 Decision date: 20 July 2017 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: Benmill Pty Ltd (Applicant)
The Council of the City of Sydney (Respondent)Representation: Counsel:
Solicitors:
Mr T March (Applicant)
Ms F Berglund (Respondent)
Hones Lawyers Pty Ltd (Applicant)
Sydney City Council (Respondent)
File Number(s): 2016/359097 Publication restriction: No
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
The appeal is upheld.
The applicant is granted leave to rely on the following amended plans, as referred to in Condition 1 of Annexure A:
Drawing Number
Drawing Name
Date
DA01 Issue 6
Cover Page and Context
13 July 2017
DA02 Issue 6
Site Analysis
13 July 2017
DA08 Issue 6
Ground Floor Plan
13 July 2017
DA09 Issue 6
Level 1 Plan
13 July 2017
DA10 Issue 7
Level 2 Plan
18 July 2017
DA11 Issue 7
Level 3 Plan
18 July 2017
DA12 Issue 6
Roof Plan
13 July 2017
DA13 Issue 7
Elevations North South
18 July 2017
DA14 Issue 7
Elevations East West
18 July 2017
DA15 Issue 6
Sections
13 July 2017
DA16 Issue 6
SEPP 65 Compliance Plans
13 July 2017
DA17 Issue 6
GFA Calculation
13 July 2017
DA18 Issue 6
Setbacks and Separation
13 July 2017
DA19 Issue 7
Materials and Structure
18 July 2017
DA24 Issue 6
Shade Structure Plan
13 July 2017
DA25 Issue 7
Ventilation Level 3
18 July 2017
DAX1 Issue 7
Materials Board
18 July 2017
The amended Clause 4.6 exception for a variation to the maximum height of buildings standard, 10 June 2017, is upheld.
The amended Clause 4.6 exception for a variation to the maximum floor space ratio standard, dated 13 July 2017, is upheld.
The applicant is to pay the respondent’s costs that are thrown away as a result of amending the development application as agreed or assessed pursuant to section 97B of the Environment and Planning Assessment Act 1979.
Application D/2015/1237 for a two-storey addition and adaptive use of a warehouse at 276-282 Devonshire St, Surry Hills to retain the existing commercial uses on the ground and first floors and accommodate 13 apartments with a communal roof terrace above is approved subject to the conditions annexed and marked “A”.
……………………….
Commissioner Smithson
359097.16 Smithson (C) (281 KB, pdf)
Decision last updated: 20 July 2017
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