Grandcity Constructions Pty Ltd v Strathfield Municipal Council

[2018] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:	Grandcity Constructions Pty Ltd v Strathfield Municipal Council [2018] NSWLEC 1398
Hearing dates:	Conciliation conference on 27 July 2018
Date of orders:	01 August 2018
Decision date:	01 August 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [6] below
Catchwords:	ORDER – appeal against council order - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Grandcity Constructions Pty Ltd (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: T Hale SC (Applicant) R White (Respondent) Solicitors: Conomos Legal (Applicant) Houston Dearn O’Connor (Respondent)
File Number(s):	2017/325731
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal against an order issued to Grandcity Constructions Pty Ltd by Strathfield Council on 6 October 2017. The appeal is lodged pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which has since been replaced with s 8.18. In determining an appeal under s 121ZK, the Court may (at s 121ZK(4)):

“(a)  revoke the order, or

(b)  modify the order, or

(c)  substitute for the order any other order that the person who gave the order could have made, or

(d)  find that the order is sufficiently complied with, or

(e)  make such order with respect to compliance with the order as the Court thinks fit, or

(f)  make any other order with respect to the order as the Court thinks fit.”

2. Since the commencement of the Environmental Planning and Assessment Amendment Act 2017 (“the amending Act”) on 1 March 2018, orders are now called ‘development control orders’, but the powers of the Court on appeal remain unchanged (see s 8.18(3) of the EPA Act).

3. 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”.

4. 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.

5. 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.

6. 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 to cause the development consent No 2014/103, as modified (being the consent granted by the Land and Environment Court in respect of case No. 17/273815), to be completed within 18 months from the date of the orders upholding this appeal.

2. The Applicant is to cause the development consent No 2014/103/2 to be completed, in accordance with the approved conditions of consent given from the date of the orders upholding this appeal, and in accordance with the following plans:

• Drawing 1, Basement Plan, Issue D, dated 27.07.2018

• Drawing 2, Ground Floor Plan, Issue D, dated 27.07.2018

• Drawing 3, Level 1 Plan, Issue D, dated 27.07.2018

• Drawing 4, Level 2 Plan, Issue D, dated 27.07.2018

• Drawing 5, Elevations, Issue D, dated 27.07.2018

• Drawing 6, Elevations 2, Issue D, dated 27.07.2018

• Drawing 7, Sections, Issue D, dated 27.07.2018

• Drawing 8, Sections, Issue D, dated 27.07.2018

• Drawing 9, Roof plan, Issue D, dated 27.07.2018

3. The Applicant is to plant the clumping bamboo on the Northern boundary of the development site within 9 months from the date of the orders upholding this appeal.

4. Either party has liberty to restore the proceeding to the Court’s list on two days’ notice.

7. The Court notes the parties’ agreement that orders 1-3 do not limit such other rights as the applicant and C & C Investment Trading Pty Ltd may have under the EPA Act including such rights that they may have to further modify the development consent.

……………………….

Joanne Gray

Commissioner of the Court