Bureau SRH Pty Ltd v Waverley Council

[2017] NSWLEC 1159

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bureau SRH Pty Ltd v Waverley Council [2017] NSWLEC 1159
Hearing dates:	Conciliation conference on 22 March 2017
Date of orders:	27 March 2017
Decision date:	27 March 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Bureau SRH Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Solicitor: Mr B Newhouse, (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/214749
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of Development Application No. DA/82/2016 for the demolition of existing buildings, amalgamation of lots and construction of a four storey residential flat building at 629-631 Old South Head Road, Rose Bay.

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. The applicant is granted leave to rely on the amended plans and documents referred to in Condition 1 at “Annexure A” to this agreement.

2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the respondent’s costs thrown away in the total amount of $15,000 within 28 days of the date of this Agreement.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA-82/2016 for the demolition of existing buildings, amalgamation of two torrens title lots, construction of a four storey residential flat building, comprising 12 units, basement car parking and strata subdivision at 629 – 631 Old South Head Road, Rose Bay NSW 2029, subject to the conditions annexed to this Agreement at “Annexure A”.

…………….

D M Dickson

Commissioner of the Court

214749.16 Dickson (C) (421 KB, pdf)