Environa Studio Pty Ltd v City of Canada Bay Council

[2018] NSWLEC 1481

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environa Studio Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1481
Hearing dates:	Conciliation conference on 7 September 2018
Date of orders:	07 September 2018
Decision date:	07 September 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Environa Studio Pty Ltd (Applicant) City of Canada Bay Council (Respondent)
Representation:	Solicitors: S Hale, Mills Oakley (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/292337
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the following amended plans and documents:

Plan No.	Title	Prepared by	Date
030 Rev H	Site Plan	Environa Studio	16 July 2018
100 Rev C	Floor Plan – Basement	Environa Studio	16 July 2018
101 Rev H	Floor Plan – Level 1	Environa Studio	16 July 2018
102 Rev H	Floor Plan – Level 2	Environa Studio	16 July 2018
103 Rev H	Floor Plan – Level 3	Environa Studio	16 July 2018
104 Rev H	Floor Plan – Level 4	Environa Studio	16 July 2018
110 Rev H	Roof Plan	Environa Studio	16 July 2018
120 Rev H	Section AA	Environa Studio	16 July 2018
121 Rev H	Section BB	Environa Studio	16 July 2018
122 Rev C	Section CC	Environa Studio	16 July 2018
123 Rev A	Section DD	Environa Studio	16 July 2018
124 Rev A	Section DD Sheet 2	Environa Studio	16 July 2018
130 Rev H	South West Elevation	Environa Studio	16 July 2018
131 Rev H	North East Elevation	Environa Studio	16 July 2018
132 Rev H	North West Elevation	Environa Studio	16 July 2018
133 Rev H	South East Elevation	Environa Studio	16 July 2018
901 Rev H	3D Perspectives Sheet 1	Environa Studio	16 July 2018
902 Rev H	3D Perspectives Sheet 2	Environa Studio	16 July 2018
903 Rev C	3D Perspectives Sheet 3	Environa Studio	16 July 2018
904 Rev C	3D Perspectives Sheet 4	Environa Studio	16 July 2018
910 Rev H	Shadow Diagrams June 21 – Plan View	Environa Studio	16 July 2018
913 Rev H	Solar Access Study – Communal Living Room Glazing – 21 June	Environa Studio	16 July 2018
914 Rev H	Solar Access Study – Communal Open Space – 21 June	Environa Studio	16 July 2018
930 Rev F	BASIX Commitments	Environa Studio	16 July 2018
980 Rev H	Area Calculation Summary – Sheet 1	Environa Studio	16 July 2018
981 Rev H	Area Calculation Summary – Sheet 2	Environa Studio	16 July 2018
982 Rev H	Area Calculation Summary – Sheet 3	Environa Studio	16 July 2018
L 501 Rev B	Specifications and Plant Schedule	ELKE	25 May 2018
L 502 Rev B	Details	ELKE	25 May 2018
L 101 Rev E	North Eastern Zone	ELKE	25 May 2018
L 102 Rev E	Western Zone	ELKE	25 May 2018
L 103 Rev A	Level 2 and 3 Balconies	ELKE	25 May 2018
L 104 Rev A	Rooftop Planters	ELKE	25 May 2018
C1 Rev E	Coversheet and notes	ACOR	13 July 2018
C2 Rev E	Stormwater Management Plan – Basement	ACOR	13 July 2018
C3 Rev E	Stormwater Management Plan – Level 1 (Sheet 1)	ACOR	13 July 2018
C4 Rev E	Stormwater Management Plan – Level 1 (Sheet 2)	ACOR	13 July 2018
C5 Rev E	Stormwater Management Details Sheet No. 1	ACOR	13 July 2018
C6 Rev E	Stormwater Management Details Sheet No. 2	ACOR	13 July 2018
C7 Rev E	Stormwater Management Details Sheet No. 3	ACOR	13 July 2018
C8 Rev E	Stormwater Management Details Sheet No. 4	ACOR	13 July 2018
C9 Rev E	Stormwater Management Details Sheet No. 5	ACOR	13 July 2018
Sheet 1	Plan Showing Selected Detail & Levels Over No. 19 Bibby Street, Chiswick	Norton Survey Partners	28 August 2018
PTC-001 Rev 1	Ground Clearance Assessment	PTC Consultants	12 July 2018
Clause 4.6 request for an exception to the height of buildings development standard	Sutherland & Associates Planning	7 September 2018

2. The Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,000 within 28 days.

3. The Applicant’s clause 4.6 written request to vary the height limit is upheld.

4. The appeal is upheld.

5. Development Application No. DA2017/0234 for the demolition of the existing structures and construction a new four (4) storey boarding house comprising 31 boarding rooms (including a caretaker’s room) at 19 Bibby Street, Chiswick, is approved, subject to the conditions set out in Annexure “A”.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (521 KB, pdf)