HSN Holdings Bondi 2 v Waverley Council

[2016] NSWLEC 1574

Land and Environment Court

New South Wales

Medium Neutral Citation:	HSN Holdings Bondi 2 v Waverley Council [2016] NSWLEC 1574
Hearing dates:	Conciliation conference on 17 November 2016
Date of orders:	28 November 2016
Decision date:	28 November 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL under s97(2) against refusal of development application - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	HSN Holdings Bondi 2 (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: Mr D Sachs, Sachs Gerace Lawyers (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/00150035
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1)(b) of the Environmental Planning and Assessment Act 1979, against the refusal of a development application (DA) 526/2015. The application sought demolition of existing dwelling, construction of a residential flat building with basement parking, associated landscaping, and strata subdivision on Lot 1 DP 1222495, known as 170 Hastings Parade, North Bondi.

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, 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 are:

1. The Applicant is granted leave to amend its Class 1 application by substituting:

1. plan of redefinition with ‘Plan of Redefinition of Lot 17 of Section 8 in DP 786’ registered 5 September 2016, DP 1222495;

2. its architectural drawings with Architectural Plan Nos DA 1002 (E), DA 2000 (E), DA 2001 (E), DA 2002 (E), DA 2003 (E), DA 2004 (E), DA 2005 (E), DA 2400 (E), DA 2401 (E), DA 2402 (E), DA 2403 (E), DA 2404 (E), DA 2500 (E), DA 2501 (E), DA 2502 (E), DA 2600 (E), DA 6000 (E), DA 8001 (E), dated 11 November 2016 and prepared by MHN Design Union Pty Ltd;

3. its draft strata plans with Draft Strata Plan Sheets 1-3 of 3, Issue B, dated 11 November 2016, surveyor ref 2747 DSP, prepared by Eric Scerri.

2. Pursuant to s 97B of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent $15,000 (excluding GST), within 28 days of the date of making of these orders.

3. The appeal is upheld.

4. Development Application No. 526/2015 (as amended in accordance with order 1 above) for demolition of existing dwelling, construction of a residential flat building with basement parking, associated landscaping, and strata subdivision on Lot 1 DP 1222495, known as 170 Hastings Parade, North Bondi, is approved subject to the conditions contained at Annexure A.

…………….

D M Dickson

Commissioner of the Court

150035.16 - Annexure A - Conditions of Consent (189 KB, pdf)