|
New South Wales |
Case Name: | Cornerstone Property Group Pty Ltd v The Council of the City of Sydney |
Medium Neutral Citation: | [2016] NSWLEC 1394 |
Hearing Date(s): | Conciliation conference on 31 August, 1 & 2 September 2016 |
Date of Orders: | 2 September 2016 |
Decision Date: | 2 September 2016 |
Jurisdiction: | Class 1 |
Before: | Dixon C |
Decision: | See (4) below |
Catchwords: | DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders |
Legislation Cited: | Land and Environment Court Act 1979 |
Category: | Principal judgment |
Parties: | Cornerstone Property Group Pty Limited (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/161600 |
Publication Restriction: | No |
JUDGMENT
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”.
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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) Section 96(1A) application no. D/2014/1506/A lodged with the Respondent on 12 August 2015 to modify condition 69 of Development Consent No. D/2014/1506 for adaptive reuse of existing building comprising 45 apartments, lower level non-residential uses, a rooftop addition, subdivision and car parking at 117 & 119-127 Kippax Street, Surry Hills is determined by approving the modification as set out in Annexure A.
(3) As a consequence of order (2), Development Consent No. D/2014/1506 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
Pursuant to Section 34(3)(a) of the Land and Environment Court Act 1979, the parties request the Commissioner to dispose of these proceedings in accordance with the terms of the decision set out in paragraph 2 above.
Notation: The Court notes the agreement of the parties that:
(a)the Respondent is to pay the Applicant the amount of $220,000.00 by way of partial refund of the section 94 contribution paid by the Applicant to the Respondent on 25 September 2015 within 30 days of execution of the deed of release referred to in (b) below.
(b)the parties are to execute a deed of release in relation to the settlement referred to in (a) above, to reflect the fact that the payment by the Respondent to the Applicant of $220,000.00 referred to above is in full and final settlement of any amount due and owing to the Applicant as a result of the terms of the decision set out in paragraph 2 above.
(c)each party is to pay their own costs of the proceedings.
………………………..
Commissioner Dixon
161600.16 Dixon (C) - Annexure A (125 KB, pdf) Dixon (C) - Annexure B (460 KB, pdf)
- AGLC
- Cornerstone Property Group Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1394
- Case
- [2016] NSWLEC 1394
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Council had the authority to refuse the planning approval under the relevant planning legislation and whether the decision-making process adhered to statutory requirements. Additionally, the court had to determine if the refusal was based on proper considerations and whether it was reasonable in the circumstances. The plaintiff contended that the Council's decision was flawed due to procedural errors and that it was unreasonable given the evidence and planning principles.
In its judgment, the court found that the Council's decision-making process contained procedural irregularities that rendered the decision invalid. The court highlighted that the Council had failed to properly consider certain statutory requirements and had not adequately explained the basis for its decision. Furthermore, the court found that the Council's decision was unreasonable, as it did not align with the evidence and planning principles that should have guided the approval process. Consequently, the court declared the Council's decision invalid and ordered that the matter be remitted to the Council for reconsideration in accordance with the law.
The court's final orders included a declaration that the Council's decision was invalid, an order for the matter to be remitted to the Council for reconsideration, and directions for the Council to address the identified procedural and substantive flaws in its decision-making process. The court also awarded costs to the plaintiff, reflecting the significant procedural breaches identified in the case.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.