Edjasen Pty Ltd v Cumberland Council

[2018] NSWLEC 1251

Land and Environment Court

New South Wales

Medium Neutral Citation:	Edjasen Pty Ltd v Cumberland Council [2018] NSWLEC 1251
Hearing dates:	Conciliation conference on 24 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Class 1
Before:	O’Neill 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:	Edjasen Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Solicitor: M Draybi, Centurion Lawyers (Applicant) J McCullan, Marsdens Law Group (Respondent)
File Number(s):	2017/292680
Publication restriction:	No

Judgment

1. 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”.

2. 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.

3. 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.

4. 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 amend Development Application No. 2017/440/1 and to rely upon the following amended plans and documents:

Plan Number and Description	Drawn By	Dated
Site Analysis – Drawing No. 16156 / A03 – Revision D	Baini Design	27/04/2018
Basement / Driveway Section – Drawing No. 16156 / A04 – Revision D	Baini Design	27/04/2018
Ground Floor Plan (U1 – U6) – Drawing No. 16156 / A05 – Revision D	Baini Design	27/04/2018
Ground Floor Plan (U6 – U16) – Drawing No. 16156 / A06 – Revision D	Baini Design	27/04/2018
First Floor Plan (U1 – U5) – Drawing No. 16156 / A07 – Revision D	Baini Design	27/04/2018
First Floor Plan (U6 – U16) – Drawing No. 16156 / A08A – Revision D	Baini Design	27/04/2018
First Floor Plan (U13 – U16) – Drawing No. 16156 / A08B – Revision D	Baini Design	27/04/2018
Roof Plan – Drawing No. 16156 / A09 – Revision D	Baini Design	27/04/2018
West & East Elevations – Drawing No. 16156 / A10 – Revision D	Baini Design	27/04/2018
Elevation (U1 – U5) – Drawing No. 16156 / A11 – Revision D	Baini Design	27/04/2018
Elevation (U6 – U12) – Drawing No. 16156 / A12 – Revision D	Baini Design	27/04/2018
Elevation (U14 – U16) – Drawing No. 16156 / A13 – Revision D	Baini Design	27/04/2018
Section A-A / F-F / G-G – Drawing No. 16156 / A14 – Revision D	Baini Design	27/04/2018
Sections B-B / C-C / D-D / E-E – Drawing No. 16156 / A15 – Revision D	Baini Design	27/04/2018
Demolition Plan – Drawing No. 16156 / A16 – Revision D	Baini Design	27/04/2018
Schedule of Materials and Finishes – Drawing No. 16156 / A20 – Revision D	Baini Design	27/04/2018
Storm Water Concept Plan Basement Level Sheet 1 of 2 – Drawing No. 101 – Issue E	Australian Consulting Engineers	12/04/2018
Storm Water Plan Basement Level Sheet 2 of 2 – Drawing No. 102 – Issue E	Australian Consulting Engineers	12/04/2018
Storm Water Layout Plan Ground Level Sheet 1 of 3 – Drawing No. 103 – Issue E	Australian Consulting Engineers	12/04/2018
Storm Water Layout Plan Ground Level Sheet 2 of 3 – Drawing No. 104 – Issue E	Australian Consulting Engineers	12/04/2018
Storm Water Layout Plan Ground Level Sheet 3 of 3 – Drawing No. 105 – Issue E	Australian Consulting Engineers	12/04/2018
OSD and WSUD Details Sheet – Drawing No. 106 – Issue E	Australian Consulting Engineers	12/04/2018
Miscellaneous Details Sheet – Drawing No. 107 – Issue E	Australian Consulting Engineers	12/04/2018
BASIX Certificate No. 769122M_02	AKV Pty Ltd	15 May 2018

2. The appeal is upheld.

3. Development Application No. 2017/440/1 (as amended) for the demolition of existing buildings and ancillary structures on-site, consolidation of three (3) residential lots into one (1) lot and construction of a multi-dwelling housing development comprising sixteen (16) units over basement parking providing for 24 vehicles (plus a communal car wash space), and one (1) at grade garage space on Lots 113, 114 and 93 in Deposited Plan 5296 (otherwise known as Nos. 78 to 80 Burnett Street and No. 21 Richardson Street in Merrylands) is approved subject to the conditions in Annexure “A”.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A (399 KB, pdf)

Annexure B (4.26 MB, pdf)