Gelder Architects v Ku-ring-gai Council

[2016] NSWLEC 1445

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gelder Architects v Ku-ring-gai Council [2016] NSWLEC 1445
Hearing dates:	Conciliation conference on 26 February 2016
Date of orders:	27 September 2016
Decision date:	27 September 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; Seniors Living development; tree retention; stormwater drainage; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Gelder Architects (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Applicant: Mr M Staunton (Barrister) Respondent: Mr C McFadzean (Solicitor)     Solicitors: Sattler & Associates Pty Ltd (Applicant) Swaab Attorneys (Respondent)
File Number(s):	165175 of 2016
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. Leave is granted to the applicant to rely upon the following amended plans:

• DA01 issue H, DA02A issue H, DA02B Issue H, DA03 issue H, DA04 issue H, DA05 issue H and DA12 issue H by Gelder Architects and dated 16 September 2016.

• DA08 issue G by Gelder Architects and dated 21 July 2016

• Landscape Plans LP01, LP02, LP03 all Revision C/1 by Site Design + Studios and dated 18 August 2016

• Stormwater Plans SW1 (B) and SW3 (A) by E2 Civil and Structural Design and dated 18 August 2016

• Stormwater Plans SW2 (E) by E2 Civil and Structural Design and dated 19 August 2016

• Stormwater Plans SW4 (O) by E2 Civil and Structural Design and dated 24 July 2015

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA0367/15 for demolition of existing structures and construction of a seniors living development consisting of 14 units, car parking and associated landscaping at 47 and 51 Killeaton Street, St Ives subject to the conditions of consent annexed hereto and marked “A”.

__________________________

Judy Fakes

Commissioner of the Court

ANNEXURE A - Conditions.pdf

Elevations.pdf

165175.16 Elevations (1.84 MB, pdf)

165175.16 Ground Floor Plan (1.10 MB, pdf)

165175.16 Ground Floor Plan part B (669 KB, pdf)

165175.16 Landscape Plan RevC (2.35 MB, pdf)

165175.16 Annexure A conditions (385 KB, pdf)