Hatziplis Holdings Pty Ltd v Inner West Council

[2018] NSWLEC 1528

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hatziplis Holdings Pty Ltd v Inner West Council [2018] NSWLEC 1528
Hearing dates:	Conciliation conference on 21 August 2018; 5–6 September 2018; 20 September 2018; 5 October 2018
Date of orders:	10 October 2018
Decision date:	10 October 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Hatziplis Holdings Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: D Loether, Bartier Perry Lawyers (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/73064
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 make, 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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend Development Application No. DA201700349 and to rely upon the following amended plans and documents, copies of which are behind Annexure “A”:

Plan Reference	Prepared by	Date
DA 100 – Cover Sheet (Revision J)	BKA Architecture	19 September 2018
DA 101 – Site Analysis (Revision D)	BKA Architecture	13 September 2018
DA 110 – Basement 2 Plan (Revision F)	BKA Architecture	13 September 2018
DA 111 – Basement 1 Plan (Revision F)	BKA Architecture	13 September 2018
DA 112 – Ground Floor Plan (Revision L)	BKA Architecture	19 September 2018
DA 113 – First Floor Plan (Revision I)	BKA Architecture	19 September 2018
DA 114 – Second Floor Plan (Revision G)	BKA Architecture	13 September 2018
DA 115 – Third Floor Plan (Revision H)	BKA Architecture	13 September 2018
DA 116 – Fourth Floor Plan (Revision J)	BKA Architecture	13 September 2018
DA 117 – Fifth Floor Plan (Revision J)	BKA Architecture	13 September 2018
DA 119 – Roof Plan (Revision G)	BKA Architecture	19 September 2018
DA 200 – East & West Elevations (Revision K)	BKA Architecture	19 September 2018
DA 201 – North Elevation (Revision I)	BKA Architecture	13 September 2018
DA 202 – South Elevation (Revision J)	BKA Architecture	19 September 2018
DA 300 – Sections (Revision H)	BKA Architecture	13 September 2018
DA 600 – Adaptable Unit Layouts (Revision C)	BKA Architecture	13 September 2018
DA 740 – Height Blanket Model (Revision F)	BKA Architecture	13 September 2018
DA 800 – External Finishes Schedule – North (Revision E)	BKA Architecture	13 September 2018
DA 801 – External Finishes Schedule – South (Revision F)	BKA Architecture	20 September 2018
DA 806 – External Finishes Schedule – East (Revision D)	BKA Architecture	20 September 2018
DA 810 – Shadow Diagrams – 21st June (Revision D)	BKA Architecture	13 September 2018
DA 811 – Shadow Diagrams – 21st June (Revision A)	BKA Architecture	29 August 2018
DA 813 – Solar Diagram – Sun Eye Perspective Sheet 1 (Revision D)	BKA Architecture	13 September 2018
DA 814 – Solar Diagram – Sun Eye Perspective Sheet 2 (Revision D)	BKA Architecture	13 September 2018
SA 830 – GFA Plans (Revision K)	BKA Architecture	20 September 2018
Landscape Plan – SK03 Ground Floor Plan (Revision M)	Scape Design	Undated
Landscape Plan – SK04 Levels 2 & 4 Plans (Revision L)	Scape Design	Undated
Landscape Plan – SK05 Levels 1 & 3 Plans (Revision E)	Scape Design	Undated
Landscape Plan – SK06 Planting Plan (Revision K)	Scape Design	Undated
Swept Path Analysis – SP 1	Undated
Swept Path Analysis – SP 2	Undated
Swept Path Analysis – SP 3	Undated
Swept Path Analysis – SP 4	Undated
Document	Prepared by	Date
BASIX Certificate No. 821605M_02	Building Sustainability Assessments	20 September 2018

2. Within 28 days of the date of these Orders, the Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $7,000.

3. The Applicant’s clause 4.6 request, prepared by Byrnes & Associates, for a variation of the Height of Buildings and the Floor Space development standards under Marrickville Local Environmental Plan 2011, a copy of which is behind Annexure “B”, is upheld.

4. The appeal is upheld.

5. Development Application No. DA201700349 (as amended) for the demolition of existing improvements and construction of a six-storey mixed use development containing four retail/commercial tenancies at ground level and residential apartments above, with associated roof top terrace and two level basement car park, on Lots 35-42 in Deposited Plan 1092634, be approved subject to the conditions contained at Annexure “C”.

……………………….

M Chilcott

Commissioner of the Court

Annexure A plans (6.32 MB, pdf)

Annexure B (1.32 MB, pdf)

Annexure C (164 KB, pdf)