Benmill Pty Ltd v The Council of the City of Sydney

[2017] NSWLEC 1385

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: Mr T March (Applicant) Ms F Berglund (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Sydney City Council (Respondent)
File Number(s):	2016/359097
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. 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

3. The amended Clause 4.6 exception for a variation to the maximum height of buildings standard, 10 June 2017, is upheld.

4. The amended Clause 4.6 exception for a variation to the maximum floor space ratio standard, dated 13 July 2017, is upheld.

5. 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.

6. 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)