Chen v City of Canada Bay Council

[2017] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chen v City of Canada Bay Council [2017] NSWLEC 1076
Hearing dates:	Conciliation conference on 14 November and 20 December 2016, 2 and 9 February 2017
Date of orders:	21 February 2017
Decision date:	21 February 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a boarding house; 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:	Ying Chen (Applicant) City of Canada Bay Council (Respondent)
Representation:	Ms A Spizzo, Landerer & Company (Applicant) Ms K Law, Matthews Folbigg (Respondent)
File Number(s):	2016/226164
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No 2016/0026 for the demolition of existing structures and construction of a two (2) storey boarding house containing twenty-five (25) x rooms at 112 Queen Street, Concord West.

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 Appeal is upheld.

2. Development Application No 2016/0026 for demolition of existing structures and construction of a two (2) storey boarding house containing twenty-five (25) x rooms comprising fourteen (14) x single rooms and eleven (11) x double rooms above one (1) level of basement parking for six (6) x vehicle spaces, five (5) x motorcycle spaces and five (5) x bicycle spaces, is approved subject to the conditions set out in Annexure “A” to this agreement.

3. The Applicant is granted leave to rely on the following amended plans:

1. Architectural plans

1. Cover Page

2. GFA Calculation – Drawing No. A1050, Issue C

3. Room Schedule – Drawing No. A1052, Issue C

4. Basement Plan – Drawing No. A1200, Issue C

5. Ground Floor Plan – Drawing No. A1201, Issue E

6. Level 01 – Drawing No. A1202, Issue C

7. Roof Plan – Drawing No. A1203, Issue C

8. Shadow Diagram 9.00am – 21 June Winter Solstice – Drawing No. A1300, Issue C

9. Shadow Diagram 12.00pm – 21 June Winter Solstice – Drawing No. A1301, Issue C

10. Shadow Diagram 3.00pm – 21 June Winter Solstice – Drawing No. 1302, Issue C

11. Shadow Diagram 3D 21 June – Drawing No. 1303, Issue B

12. East Elevation – Drawing No. A1500, Issue B

13. North Elevation - Drawing No. A1501, Issue C

14. West Elevation – Drawing No. A1502, Issue C

15. South Elevation – Drawing No. A1503, Issue C

16. Material Schedule – Drawing No. A1600, Issue C

17. Sections – Drawing No. A1700, Issue C

18. Driveway Sections – Drawing No. A1701, Issue C

2. BASIX Certificate dated 1 December 2016

3. NatHERS Specification

4. Landscape Plans

1. Drawing No. LPS34 16 – 307/1, Issue C

2. Drawing No. LPS34 16 – 307/2, Issue B

5. Stormwater Concept Design Plans

1. Letter from SGC Engineering re stormwater kerb drainage dated 6 December 2016

2. Transmittal from SGC to Ghazi Al Ali Architects re: amended Stormwater plans

3. Coversheet – Drawing No. SW01, Issue E

4. Basement Plan – Drawing No. SW02, Issue E

5. Ground Floor Plan – Drawing No. SW03, Issue E

6. Sediment and Erosion Control Plan and Details – Drawing No. SW04, Issue E

7. Details Sheet – Drawing No. SW05, Issue E

6. Traffic Plans

1. Parking Review – Drawing No. SK-001, Version 6

2. Ramp Assessment Letter from Parking & Traffic Consultants dated 6 December 2016

7. Operational Plan of Management dated 20 December 2016

4. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application, pursuant to Section 97B(2) of the Environmental Planning and Assessment 1979, in the sum of $9,000 to be paid within 28 days.

…………….

G Brown

Commissioner

226164.16 Annexure A (C) (167 KB, pdf)