Land and Environment Court
New South Wales
Medium Neutral Citation: Diagono Property Group Pty Ltd v Randwick City Council [2017] NSWLEC 1526 Hearing dates: Conciliation conference on 31 August, 22 September 2017 Date of orders: 22 September 2017 Decision date: 22 September 2017 Jurisdiction: Class 1 Before: Chilcott 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: Diagono Property Group Pty Limited (Applicant)
Randwick City Council (Respondent)Representation: Solicitor:
Mr M Sonter, Mills Oakley (Applicant)
Ms V McGrath, Norton Rose Fulbright Australia (Respondent)
File Number(s): 2017/145480 Publication restriction: No
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
The applicant is granted leave to rely on the following amended plans:
Plan
Revision
Date
SITE ANALISYS A1002 SE34_02
SE 34_02
11.09.2017
PLAN: BASEMENT -2 A2201 SE34_02
SE 34_02
11.09.2017
PLAN: BASEMENT -1 A2202 SE34_02
SE 34_02
11.09.2017
PLAN: GROUND A2203 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 01 A2204 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 02 A2205 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 03 A2206 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 04 A2207 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 05 A2208 SE34_02
SE 34_02
11.09.2017
PLAN: LEVEL 06 A2209 SE34_02
SE 34_02
11.09.2017
PLAN: ROOF A2210 SE34_02
SE 34_02
11.09.2017
ELEVATION: WEST A3103 SE34_02
SE 34_02
11.09.2017
ELEVATION: EAST A3104 SE34_02
SE 34_02
11.09.2017
ELEVATION: NORTH A3105 SE34_02
SE 34_02
11.09.2017
ELEVATION: SOUTH A3106 SE34_02
SE 34_02
11.09.2017
SECTION: 01 NORTH-SOUTH A3201 SE34_02
SE 34_02
11.09.2017
SECTION :02 EAST-WEST A3202 SE34_02
SE 34_02
11.09.2017
FINISHES BOARD A8201 SE34_02
SE 34_02
11.09.2017
The application is upheld.
Consent is granted to Development Application DA 938/2016 for the demolition of existing buildings and the construction of a 7 storey shop top housing development comprising three ground floor commercial tenancies and thirty nine residential units above with two levels of basement parking at 160-164 Anzac Parade and 4 Bowral Street, Kensington. subject to the conditions of consent in annexure “A”.
The Clause 4.6 variation prepared by HDC Planning, dated September 2017 in relation to the height of building development standard contained in clause 4.3 of the Randwick Local Environmental Plan 2012 is upheld.
The Applicant pay the Respondent’s s97B costs in the sum of $5,800 within 28 days from the date of this Order.
……………………….
Commissioner Chilcott
Annexure A (479 KB, pdf)
- AGLC
- Diagono Property Group Pty Ltd v Randwick City Council [2017] NSWLEC 1526
- Case
- [2017] NSWLEC 1526
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the respondent had exercised its power to grant development approval in accordance with the statutory requirements. Specifically, the court had to consider whether the respondent's refusal was based on valid reasons and whether the applicant's proposal complied with relevant planning instruments. Additionally, the court needed to assess whether the council's decision-making process adhered to the principles of natural justice and procedural fairness.
The court found that the respondent's decision to refuse development approval was not supported by valid reasons and that the council had failed to properly consider the merits of the applicant's proposal. The court held that the respondent had not acted in accordance with the statutory requirements and had not adhered to the principles of natural justice and procedural fairness. Consequently, the court quashed the respondent's decision and remitted the matter back to the council for reconsideration.
The court further ordered that the respondent must consider the applicant's development proposal afresh, taking into account all relevant planning instruments and the merits of the proposal. The respondent was required to provide written reasons for its decision and to notify the applicant of its determination. The court's decision underscored the importance of proper and reasoned decision-making in the context of development approvals under the Environmental Planning and Assessment Act 1979 (NSW).
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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