J S Development NSW Pty Ltd v Penrith City Council

[2017] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:	J S Development NSW Pty Ltd v Penrith City Council [2017] NSWLEC 1160
Hearing dates:	Conciliation conference on 28 March 2017
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	J S Development NSW Pty Ltd (Applicant) Penrith City Council(Respondent)
Representation:	Solicitors: Mr S Simington Lindsay Taylor Lawyers (Applicant) Mr P Couch Sparke Helmore Lawyers (Respondent)
File Number(s):	155751/2016
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, 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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon:

1. Amended architectural plans referred to in Condition 1 of the conditions of consent annexed hereto and marked “Annexure A”,

2. BASIX Certificate No 708884M_03 referred to in Condition 1 of “Annexure A”,

3. Revised Clause 4.6 variation request and Apartment Design Guide checklist dated 31 January 2017,

4. Revised Flood Assessment dated February 2017,

5. Design Verification Statement dated 31 January 2017,

6. Landscape Architects Statement dated 23 January 2017,

7. Swept Path Analysis diagrams dated 1 February 2017,

8. Waste Management Plans and details.

2. The Appeal is upheld.

3. Development Consent is granted to Development Application No. DA16/0255 for the demolition of existing structures and the construction of six (6) storey residential flat development containing 55 apartments and basement car parking at Lots A & B 363630, 42-44 Lethbridge Street, Penrith, subject to the conditions of consent annexed hereto and marked “Annexure A”.

4. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979 within 28 days of the date of this Agreement in the amount of $13,000.00.

…………….

Commissioner Morris

155751.2016 (C) (182 KB, pdf)

155751.2016 Morris - Plans (8.73 MB, pdf)