Ezra 1 Pty Ltd v City of Botany Bay

[2016] NSWLEC 1484

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ezra 1 Pty Ltd v City of Botany Bay [2016] NSWLEC 1484
Hearing dates:	Conciliation conference on 26 September, 7 October 2016
Date of orders:	07 October 2016
Decision date:	07 October 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	See (4) below
Catchwords:	Development Application; Demolition, construction of an 8 storey residential flat building, drainage, landscape; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ezra 1 Pty Ltd (Applicant) City of Botany Bay (Respondent)
Representation:	Counsel: Dr S. Beverling (Applicant) Solicitors: D. Arraj, Blackstone Waterhouse Lawyers (Applicant) R. McCulloch, Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/204856
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, 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. that the appeal be upheld; and

2. that approval is granted to Application No. DA-15/237 for Mixed Use Development at Lot 50 in DP 1037780, 563 Gardeners Road, Mascot and comprising demolition of all existing structures on site; excavation on site to construct 1 basement level of carparking; and construction of 8 storey mixed use development containing 25 residential units and one 40m2 commercial unit, subject to conditions set out in Annexure “A” attached hereto.

…………….

R Hussey

Acting Commissioner

204856.16 - Annexure A (164 KB, pdf)