Castana Pty Ltd v Canterbury-Bankstown Council

[2018] NSWLEC 1263

Land and Environment Court

New South Wales

Medium Neutral Citation:	Castana Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1263
Hearing dates:	Conciliation conference on 8 February, 1 March, 17 & 24 April and 22 May 2018
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and construction of a five storey shop top housing development 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:	Castana Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: D Sachs, Sachs Gerace Lawyers (Applicant) A. Knox, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2017/273417
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Castana Pty Ltd against the deemed refusal by Canterbury-Bankstown Council of Development Application No. DA-20/2017 seeking consent for the demolition of existing structures and construction of a five (5) storey shop top housing development with associated basement parking containing 24 units, five (5) serviced apartments and two (2) retail tenancies at 636-638 New Canterbury Road, Hurlstone Park.

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 amended plans and documentation referred to in condition 8 of Annexure A to this agreement.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $8,000 upon agreement.

3. The appeal is upheld.

4. Development application DA 20/2017 for the demolition of existing structures and construction of a five (5) storey shop top housing development with associated basement parking containing 21 units, five (5) serviced apartments and two (2) retail tenancies at 636 new Canterbury Road, Hurlstone Park (Lot 100 DP 1176365) is approved subject to the conditions and Annexure A.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (119 KB, pdf)