Benson McCormack Pty Ltd v Northern Beaches Council

[2016] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:	Benson McCormack Pty Ltd v Northern Beaches Council [2016] NSWLEC 1236
Hearing dates:	Conciliation conference on 7, 26 April, 3 and 18 May 2016
Date of orders:	27 May 2016
Decision date:	27 May 2016
Jurisdiction:	Class 1
Before:	Tuor 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:	Benson McCormack Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Mr G McKee of McKees Legal Solutions (Applicant) Mr A Seton of Marsdens Law Group (Respondent)
File Number(s):	2016/154594 (Formerly 11166 of 2015)
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 as the plans relied upon for the purpose of the development application:

Drawing Title	Drawing No.	Revision	Prepared by	Dated
Basement Plan	A-0101	D	Benson McCormack	May 2016
Ground- Floor Plan	A-0102	D	Benson McCormack	May 2016
First Floor Plan	A-0103	D	Benson McCormack	May 2016
Second Floor Plan	A-0104	D	Benson McCormack	May 2016
Loft Plan	A-0105	D	Benson McCormack	May 2016
Roof Plan	A-0106	D	Benson McCormack	May 2016
Residential Ground Floor Plan	A-0107	D	Benson McCormack	May 2016
Residential First Floor Plan	A-0108	D	Benson McCormack	May 2016
Residential Second Floor Plan	A-0109	D	Benson McCormack	May 2016
Residential Loft Level Plan	A-0110	D	Benson McCormack	May 2016
Residential Roof Plan	A-0111	D	Benson McCormack	May 2016
North Elevation	A-0201	D	Benson McCormack	May 2016
South Elevation	A-0202	D	Benson McCormack	May 2016
East Elevation	A-0203	D	Benson McCormack	May 2016
West Elevation	A-0204	D	Benson McCormack	May 2016
Section AA	A-0220	D	Benson McCormack	May 2016
Section BB	A-0221	D	Benson McCormack	May 2016
Section CC	A-0222	C	Benson McCormack	May 2016
Section DD	A-0223	C	Benson McCormack	May 2016
Section EE	A-0224	C	Benson McCormack	May 2016
GFA Calculations	A-1202	E	Benson McCormack	May 2016

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, as agreed or as assessed.

3. The appeal is upheld.

4. Development Consent is granted to Development Application No. 236/2015 for the demolition of existing structures and the construction of a residential flat building with three storeys plus a loft, containing 13 units, approved and to be used (4 units) pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, including a basement car park with nine car spaces and associated landscaping, on the land known as Lots 5 and 6 in Deposited Plan 9335, 323 – 325 Sydney Road, Balgowlah, subject to the conditions as contained in Annexure “A”.

…………….

Annelise Tuor

Commissioner

154594.16 Tuor (C) (287 KB, pdf)

154594.16 Tuor_Applicant_s final amended plans (2.66 MB, pdf)