Betop Property Development Pty Ltd v North Sydney Council

[2018] NSWLEC 1439

Land and Environment Court

New South Wales

Medium Neutral Citation:	Betop Property Development Pty Ltd v North Sydney Council [2018] NSWLEC 1439
Hearing dates:	Conciliation conference on 31 July 2018 and 16 August 2018
Date of orders:	20 August 2018
Decision date:	20 August 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979. Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Betop Property Development Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Solicitors: F Rourke, Allens (Applicant) S Kondilios, Hall & Wilcox Lawyers (Respondent)
File Number(s):	2018/156624
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. The Applicant is granted leave to amend the application to modify development consent no. DA 39/2016 by relying on the following plans and documents:

Drawing Number /Title	Revision	Date	Prepared by
100 Finishes & Materials	C	02/08/2018	Arquero
101 Exterior	C	02/08/2018	Arquero
200 Basement 2 Floor Plan	C	02/08/2018	Arquero
201 Basement 1 Floor Plan	C	02/08/2018	Arquero
202 Ground Floor Plan	C	02/08/2018	Arquero
203 First Floor Plan	C	02/08/2018	Arquero
204 Second Floor Plan	C	02/08/2018	Arquero
205 Third Floor Plan	C	02/08/2018	Arquero
300 Sections	C	02/08/2018	Arquero
301 Section	C	02/08/2018	Arquero
LPS34 16 – 117 Landscape Plan (page 1 of 4)	M	03/08/2018	Conzept Landscape Architects
LPS34 16 – 117 Landscape Plan (page 2 of 4)	M	03/08/2018	Conzept Landscape Architects
LPS34 16 – 117 Landscape Plan (page 3 of 4)	K	03/08/2018	Conzept Landscape Architects
LPS34 16 – 117 Landscape Plan (page 4 of 4)	H	10/07/2018	Conzept Landscape Architects
Structural Report	N/A	07/08/2018	Birzulis & Associates
BE.00 Bulk Excavation Notes	B	07/08/2018	Birzulis & Associates
BE.01 Shoring Plan	B	07/08/2018	Birzulis & Associates
BE.02 Shoring Elevations – Sheet 1	B	07/08/2018	Birzulis & Associates
BE.03 Shoring Typical Details & Sections – Sheet 1	B	07/08/2018	Birzulis & Associates
BE.04 Shoring Typical Details & Sections – Sheet 2	B	07/08/2018	Birzulis & Associates
Traffic Design Statement	N/A	07/ 08/2018	Ason Group

3. The Applicant is to pay the Respondent's costs as agreed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

4. Development consent DA 39/2016 is modified by replacing the conditions of consent with the conditions of consent set out in Annexure A.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (522 KB, pdf)

Plans (1.93 MB, pdf)