Gunlake Concrete Pty Limited v Bayside Council

[2017] NSWLEC 1178

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gunlake Concrete Pty Limited v Bayside Council [2017] NSWLEC 1178
Hearing dates:	Conciliation conference on 21 February, 5, 28 March 2017
Date of orders:	06 April 2017
Decision date:	06 April 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: construction and operation of a concrete batching plant; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Gunlake Concrete Pty Limited (Applicant) Bayside Council (Respondent)
Representation:	Advocates Mr C McEwen SC (Applicant) Mr M Staunton, barrister (Respondent) Solicitors Corrs Chambers Westgarth Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/340542
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development consent DA 2016/39/1 for the construction and operation of a concrete batching plant at 2 Anderson Street, Banksmeadow.

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 its application in accordance with the amended plans and documents listed in condition 2 of Annexure "A".

2. In full and final settlement of the Respondent’s claim for costs under section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs under section 97B, agreed in the amount of $50,000, within 28 days of these orders.

3. The appeal is upheld.

4. Development consent DA 2016/39/1 for the construction and operation of a concrete batching plant at 2 Anderson Street, Banksmeadow is approved subject to the conditions set out in Annexure “A”.   

……………………….

Commissioner Brown

340542.16 Brown (C) (480 KB, pdf)