Bettar v The Council of the City of Sydney

[2018] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bettar v The Council of the City of Sydney [2018] NSWLEC 1429
Hearing dates:	Conciliation conference on 14 August 2018
Date of orders:	14 August 2018
Decision date:	14 August 2018
Jurisdiction:	Class 1
Before:	O’Neill 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:	Paul Bettar (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: S Duggan SC (Applicant) Solicitors: Mills Oakley (Applicant) A Singh, City of Sydney Council (Respondent)
File Number(s):	2018/31458
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. Leave is granted to the Applicant to rely on the amended plans set out in Annexure A. The parties agree that the amendments are not minor for the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) in the sum of $34,423.39 within twenty eight (28) days from the date of these orders.

3. The appeal is upheld.

4. The clause 4.6 variation request relating to height is upheld.

5. Development consent is granted to development application No. D/2017/1720 for the addition of two storeys to the building approved under development consent D/2016/330 together with modifications to the conditions of D/2016/330 to incorporate design changes to the development pursuant to both consents, which is located at 55-57 and 59 Wentworth Avenue, Sydney being all that land comprised in Lots 7, 8 and 9 in DP 6380, subject to the conditions of consent in Annexure B.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A (13.2 MB, pdf)

Annexure B (239 KB, pdf)