GR Capital Group Pty Ltd v Georges River Council

[2018] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:	GR Capital Group Pty Ltd v Georges River Council [2018] NSWLEC 1260
Hearing dates:	Conciliation conference on 29 May 2018
Date of orders:	30 May 2018
Decision date:	30 May 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	GR Capital Group Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: M Staunton (Respondent) Solicitors: M Sonter, Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/304530
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by GR Capital Group Pty Ltd against Georges River Council’s refusal of development application no. DA2017/0205 lodged on 3 July 2017 for the construction of five additional levels (31 apartments) to an approved mixed development under Development Consent DA2014/0183 (as modified) at 1 - 5 Treacy Street, Hurstville.

2. 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”.

3. 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.

4. 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.

5. 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 rely on the amended plans and documents as referred to in condition 1 of the conditions of consent contained in Annexure "A".

2. The Applicant is to pay the Respondent's costs thrown away under s8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $59,999 within 14 days.

3. The appeal is upheld.

4. Development application no. 2017/0205 for the construction of additional levels to an approved mixed development under Development Consent DA2014/0183 (as modified) as amended is approved subject to the conditions in Annexure "A".

5. The Objections pursuant to cl 4.6 of the Hurstville Local Environmental Plan 2012 (LEP) to:

1. cl 4.3 of the LEP in relation to height dated 25 May 2018, comprising annexure 'D' to the joint report of Nigel Dickson, Brett Daintry, Gabrielle Morrish and Clare Brown dated 25 May 2018 (Joint Report); and

2. cl 4.4 of the LEP in relation to floor space ratio dated 25 May 2018 comprising annexure 'E' to the Joint Report,

are upheld.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (164 KB, pdf)

Annexure B Plans (2.89 MB, pdf)