Gross Pty Ltd v Bayside Council

[2018] NSWLEC 1232

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gross Pty Ltd v Bayside Council [2018] NSWLEC 1232
Hearing dates:	Conciliation conference on 13 March & 30 April 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	APPEAL – application to modify development consent - coffee roasting production - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Gross Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Solicitors: R Bennett, Pikes & Verekers Lawyers (Applicant) J Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/300945
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Bayside Council concerning a modification application 2015/113/2 to delete condition 1 of development consent 2015/113 for the use of the premises as light industry (coffee roasting).

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 amend Section 96(1A) Modification Application dated 24 February 2017 and to rely upon the following amended plans, copies of which are behind Annexure “A”:

Plan	Author	Dated / Received by Council
Floor Plans & Elevations Dwg No: 2018-02 Revision A 2018-02 Roof Plan and First Elevation 2018-03 Floor Plans 2018-04 Elevation	ID & D Pty Ltd	Dated: 17.04.2018
Landscape Plan	Botanica	Dated: 13.04.2018

2. The appeal is upheld.

3. Section 96(1A) Modification Application dated 24 February 2017 to modify Development Consent No 15/133 for use for coffee roasting production, warehousing, fit-out and signage is determined by approving the modification as set out in Annexure “B”.

4. As a consequence of part (c) above, Development Consent No 15/133 is now subject to the consolidated, modified conditions of development consent set out in Annexure “C” (including the attached Plan of Management dated April 2018).

6. The Court notes the agreement of the parties that the Applicant is to pay the Respondent’s reasonable costs thrown away in relation to dealing with the amended plans in the agreed amount of $15,000 within 60 days.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (982 KB, pdf)

Annexure B (49.3 KB, pdf)

Annexure C (273 KB, pdf)

Decision last updated: 16 May 2018