Iron Wealth Pty Ltd trading as Makary Developments v Fairfield City Council

[2018] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation:	Iron Wealth Pty Ltd trading as Makary Developments v Fairfield City Council [2018] NSWLEC 1110
Hearing dates:	Conciliation conference 1 March 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures, construction of a six (6) storey residential flat building; 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:	Iron Wealth Pty Ltd trading as Makary Developments (Applicant) Fairfield City Council (Respondent)
Representation:	Solicitors: Vasili Conomos, Conomos Legal (Applicant) Adam Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/112959
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-675/2016 for the demolition of existing structures, construction of a six (6) storey residential flat building and associated landscaping at 121 Arbutus Street & 134-136 Cambridge Street, Canley Heights.

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 Development Application No. DA-675.1/2016 and to rely upon the following amended plans and documents:

Drawing No.	Revision	Drawn by	Date
A-02.1	9	Apex Intelligent Design	1 March 2018
A-03.1	9	Apex Intelligent Design	1 March 2018
A-03.2	9	Apex Intelligent Design	1 March 2018
A-04.1	9	Apex Intelligent Design	1 March 2018
A-04.2	9	Apex Intelligent Design	1 March 2018
A-04.3	9	Apex Intelligent Design	1 March 2018
A-04.4	9	Apex Intelligent Design	1 March 2018
A-04.5	9	Apex Intelligent Design	1 March 2018
A-04.6	9	Apex Intelligent Design	1 March 2018
A-04.7	9	Apex Intelligent Design	1 March 2018
A-05.1	9	Apex Intelligent Design	1 March 2018
A-05.2	9	Apex Intelligent Design	1 March 2018
A-9	9	Apex Intelligent Design	1 March 2018
A-10	9	Apex Intelligent Design	1 March 2018
A-11	9	Apex Intelligent Design	1 March 2018
A-12	9	Apex Intelligent Design	1 March 2018
SM-01	7	Apex Intelligent Design	14 February 2017
A-2.2	8	Apex Intelligent Design	18 October 2017

2. The appeal is upheld.

3. Development Application No. DA-675/2016 (as amended) for the demolition of existing structures, construction of a six (6) storey residential flat building (comprising of 33 apartments) above a split / multi-level basement car park (containing 46 spaces) and associated landscaping on Lots 5, 6 & 7 DP 23109 (otherwise known as 121 Arbutus Street & 134-136 Cambridge Street, Canley Heights) is approved subject to the conditions in Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (183 KB, pdf)