Fernside Developments Pty Ltd v Canterbury-Bankstown Council

[2018] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fernside Developments Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1088
Hearing dates:	Conciliation conference on 24 November 2017, 4 December 2017, 14 December 2018 and 20 December 2018
Date of orders:	26 February 2018
Decision date:	26 February 2018
Jurisdiction:	Class 1
Before:	Brown 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:	Fernside Developments Pty (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitor: Grant Christmas, Apex Planning and Environmental Law (Applicant) Jisella Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2017/214615
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. Leave is granted to the Applicant to rely on the following amended set of plans:

Drawing Number	Drawing Title	Revision	Prepared by	Dated
A201	Roof/Site Plan	B	Mackenzie Architects International	07/12/17
A202	Basement 02	B	Mackenzie Architects International	07/12/17
A203	Basement 01	B	Mackenzie Architects International	07/12/17
A204	Stormwater transfer	C	Mackenzie Architects International	07/12/17
A205	Ground Floor Plan	C	Mackenzie Architects International	07/12/17
A206	First Floor Plan	B	Mackenzie Architects International	07/12/17
A207	Second Floor Plan	B	Mackenzie Architects International	07/12/17
A208	Third Floor Plan	B	Mackenzie Architects International	07/12/17
A301	Elevations	C	Mackenzie Architects International	undated
A401	Section A + B	B	Mackenzie Architects International	07/12/17
A402	Section C + D	B	Mackenzie Architects International	07/12/17
A506	Pre + Post Adaptable Units	B	Mackenzie Architects International	07/12/17
A507	Finishes Schedule	B	Mackenzie Architects International	07/12/17

2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs as agreed or as assessed.

3. The appeal is upheld.

4. Development consent is granted to DA-516/2015 to the demolition of existing structures and construction of two, four storey residential flat buildings providing a total of 92 apartments with associated landscaping, basement car parking and strata subdivision at 2-12 Harp Street and 1-5 Alfred Street, Clemton Park subject to the conditions at Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (147 KB, pdf)