Dyna Constructions v Canterbury Bankstown Council

[2016] NSWLEC 1562

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dyna Constructions v Canterbury Bankstown Council [2016] NSWLEC 1562
Hearing dates:	Conciliation conference on 12 September 2016
Date of orders:	28 November 2016
Decision date:	28 November 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL under s97(2) against deemed refusal of development application - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Dyna Constructions Pty Ltd (Applicant) Council of the City of Canterbury Bankstown (Respondent)
Representation:	Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr P Jackson, Pikes Vereker Solicitors (Respondent)
File Number(s):	2016/169255
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1)(b) of the Environmental Planning and Assessment Act 1979, (the Act) against the deemed refusal of a development application (DA) 127/2016. The application is demolition of existing structures, consolidation of the two existing lots and approval for a part three, part six storey mixed use development. The development proposes ground floor commercial over three levels of basement car parking, and 21 residential units. The development is proposed at 297-299 Canterbury Road Canterbury.

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, 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 are:

1. The Applicant is granted leave to amend development application 127/2016 in accordance with the plans and documentation set out in condition 6 of the conditions annexed at A;

2. The Applicant is to pay the Respondent’s costs arising under Section 97B of the Act as agreed or assessed;

3. The appeal is upheld;

4. Development application 127/2016 for the demolition of existing structures, consolidation of two existing allotments into one and construction of a five storey mixed use development comprising one ground floor commercial tenancy and 20 residential units over three levels of basement car parking ay 297-299 Canterbury Road, Canterbury being Lots 35 and 36 Section A in DP 2785 is approved subject to conditions annexed at A.

…………….

D M Dickson

Commissioner of the Court

169255.16 Dickson (C) (260 KB, pdf)