Bradley Frack Air Compressor Systems Pty Ltd v Council of the City of Sydney

[2017] NSWLEC 1753

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bradley Frack Air Compressor Systems Pty Ltd & Anor v Council of the City of Sydney [2017] NSWLEC 1753
Hearing dates:	Conciliation conference on 13 November 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: Stage 1 approval for a 9 storey mixed use building; 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:	Bradley Frack Air Compressor Systems Pty Ltd (First Applicant) Bradley Frack (Second Applicant) Council of the City of Sydney (Respondent)
Representation:	Solicitors: Mr S Griffiths, Bartier Perry Lawyers (First and Second Applicant) Mr A Singh, Council of the City of Sydney (Respondent)
File Number(s):	2017/214371
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of development application No. D/2016/1728 for a Stage 1 approval for a 9 storey mixed use building envelope comprising 5 levels of commercial, 4 levels of residential, 1 level of basement storage and plant, and rooftop communal open space located at 52-58 Reservoir Street, Surry Hills.

2. 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”.

3. 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.

4. 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.

5. 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 the Applicant to rely on the amended plans set out in Annexure ‘A’. The parties agree that the amendments are minor for the purposes of s 97B of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to development application No. D/2016/1728 for Stage 1 approval for a 9 storey mixed use building envelope comprising 5 levels of commercial, 4 levels of residential, 1 level of basement storage and plant, and rooftop communal open space located at 52-58 Reservoir Street, Surry Hills, being all that land comprised in Lot 14 DP 82732 and Lot 1 DP 338338, subject to the conditions of consent in Annexure ‘B’.

……………………….

G Brown

Commissioner of the Court

Annexure A (Plans)

Annexure B (C)