Bursill Street Pty Limited (ATF the Bursill Street Unit Trust) v Cumberland Council

[2017] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bursill Street Pty Limited (ATF the Bursill Street Unit Trust) v Cumberland Council [2017] NSWLEC 1148
Hearing dates:	Conciliation conference on 24 January 2017
Date of orders:	23 March 2017
Decision date:	23 March 2017
Jurisdiction:	Class 1
Before:	Fakes AC
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: residential flat building; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	BURSILL STREET PTY LIMITED (ATF THE BURSILL STREET UNIT TRUST) (Applicant) CUMBERLAND COUNCIL (Respondent)
Representation:	Applicant: Tom Zreika, Sterling Legal Respondent: Anthony Hudson, Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	2016/290622
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. The Applicant is granted leave to rely on the amended plan as listed below:

Architectural Plans (DA:000, UA:101, UA:102, DA:201, DA:202, DA:203, DA:204, DA:205, DA:206, DA:207, DA:208, DA:209, DA:210, DA:300, DA:301, DA:400, DA:601, DA:602, DA:603, DA:604, DA:605, DA:606, DA:607, DA:608, DA:700) Issue F dated 25 January 2017 and Architectural Plans (UA:100 and DA :200) Issue F dated 24 January 2017 prepared by Design Cubicle Pty Ltd; and Landscape plan titled DA LANDSCAPE PLAN Job No. 4007 dated 27 February 2017 by Monaco Designs Pty Ltd.

2. The Appeal is upheld.

3. Development Application No. DA/109/2015 dated 5 March 2015 for the demolition of existing structures and construction of a new 4-storey residential flat building comprising 33 units and basement car parking at 78-84 Bursill Street, Guildford is approved subject to the conditions contained in Annexure ‘A’ attached.

4. The Court notes that the parties have agreed that the amendments contained in the plans in 2(a) are minor and that there should be no order as to costs pursuant to s.97B of the Environmental Planning and Assessment Act 1979.

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Acting Commissioner Fakes

290622.16 Fakes (C) (484 KB, pdf)