C and C Investment Trading Pty Ltd v Strathfield Municipal Council

[2018] NSWLEC 1399

Land and Environment Court

New South Wales

Medium Neutral Citation:	C & C Investment Trading Pty Ltd v Strathfield Municipal Council [2018] NSWLEC 1399
Hearing dates:	Conciliation conference on 27 July 2018
Date of orders:	01 August 2018
Decision date:	01 August 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [4] below
Catchwords:	APPEAL – modification application – consent granted by the Court - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	C & C Investment Trading Pty Ltd (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: T Hale SC (Applicant) R White (Respondent) Solicitors: Conomos Legal (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2017/273815
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Strathfield Council of an application to modify a development consent granted by the Court on 1 July 2015 for the partial demolition of existing improvements and alterations and additions for the purpose of a boarding house at 51 – 55 Homebush Road, Strathfield.

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 upon the following plans:

• Drawing 1, Basement Plan, Issue D, dated 27.07.2018

• Drawing 2, Ground Floor Plan, Issue D, dated 27.07.2018

• Drawing 3, Level 1 Plan, Issue D, dated 27.07.2018

• Drawing 4, Level 2 Plan, Issue D, dated 27.07.2018

• Drawing 5, Elevations, Issue D, dated 27.07.2018

• Drawing 6, Elevations 2, Issue D, dated 27.07.2018

• Drawing 7, Sections, Issue D, dated 27.07.2018

• Drawing 8, Sections, Issue D, dated 27.07.2018

• Drawing 9, Roof plan, Issue D, dated 27.07.2018

2. The Applicant is to pay those costs of the Respondent, as agreed or assessed, thrown away as a result of amending the application for development consent, pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. The modification application No 2014/103/2 dated 30 May 2017 is approved such that it amends DA No 2014/103 in terms set out in Annexure ‘A’ attached to this document.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (C)