Bexley Village Pty Limited v Bayside Council

[2018] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bexley Village Pty Limited v Bayside Council [2018] NSWLEC 1174
Hearing dates:	Conciliation conference on 15 and 29 March 2018
Date of orders:	06 April 2018
Decision date:	06 April 2018
Jurisdiction:	Class 1
Before:	Blakely AC
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:	(Applicant) (Respondent)
Representation:	Solicitors: Mr Anthony Whealy, Mills Oakley Solicitors (Applicant) Mr John Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/300153
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. Leave is granted to rely upon the amended plans and documents referred to in condition 2 of Annexure “A”.

2. The clause 4.6 written request prepared by Dickson Rothschild (as amended) dated 3 April 2018 to vary the Height of Buildings control under clause 4.3 of Rockdale Local Environmental Plan 2011 is upheld.

3. The applicant is to pay the Council's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000 within 28 days.

4. The Appeal is upheld.

5. Development application no. DA/2017/373 for demolition of existing structures and construction of a mixed use development comprising of a ground level commercial tenancy, a rooftop terrace and five levels of residential units including 1, 2 and 3 bedroom units as well as basement car parking at 1 – 3 Harrow Road, Bexley (as amended) is approved subject to the conditions set out in Annexure “A” and on the basis of the Applicant’s offer to enter into a voluntary planning agreement as set out in Annexure “B”.

……………………….

Acting Commissioner Blakely

Annexure A (207 KB, pdf)

Annexure B (1.00 MB, pdf)

Annexure C (Cl4.6) (796 KB, pdf)

Annexure D (Plans) (14.3 MB, pdf)