JB Hillsdale Pty Ltd v City of Botany Bay Council

[2016] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:	JB Hillsdale Pty Ltd v City of Botany Bay Council [2016] NSWLEC 1600
Hearing dates:	Conciliation conference on 2 September, 4 October, 9 December 2016
Date of orders:	13 December 2016
Decision date:	13 December 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	APPEAL: Development application – residential flat buildings; 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:	JB Hillsdale Pty Ltd (Applicant) City of Botany Bay Council (Respondent)
Representation:	Counsel: Peta Hudson (Applicant) John Cole (Respondent) Solicitors: Marsdens Law Group (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00163500
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is given leave to amend the development application by substituting the following plans and documents as the plans relied upon for the purpose of the development application:

Drawing No.	Author	Date
Basement 3 Plan, Project No 0915, Drawing No. A02_A, Issue 03	Krikis Tayler Architects	25 November 2016
Basement 2 Plan, Project No 0915, Drawing No. A02, Issue 08	Krikis Tayler Architects	25 November 2016
Basement 1 Plan, Project No 0915, Drawing No. A03, Issue 09	Krikis Tayler Architects	25 November 2016
Lower Ground Plan, Project No 0915, Drawing No. A04, Issue 09	Krikis Tayler Architects	25 November 2016
Ground Level Plan, Project No 0915, Drawing No. A05, Issue 12	Krikis Tayler Architects	25 November 2016
Level 1-2 Plan, Project No 0915, Drawing No. A06, Issue 08	Krikis Tayler Architects	25 November 2016
Level 3 Plan, Project No 0915, Drawing No. A06_A, Issue 02	Krikis Tayler Architects	25 November 2016
Level 4 Plan, Project No 0915, Drawing No. A09, Issue 06	Krikis Tayler Architects	25 November 2016
Level 5 Plan, Project No 0915, Drawing No. A10, Issue 06	Krikis Tayler Architects	25 November 2016
Roof Plan, Project No 0915, Drawing No. A11, Issue 06	Krikis Tayler Architects	25 November 2016
Elevations 1, Project No 0915, Drawing No. A20, Issue 07	Krikis Tayler Architects	25 November 2016
Elevations 2, Project No 0915, Drawing No. A21, Issue 06	Krikis Tayler Architects	25 November 2016
Elevations 3, Project No 0915, Drawing No. A22, Issue 06	Krikis Tayler Architects	25 November 2016
Section A-A, Project No 0915, Drawing No. A30, Issue 06	Krikis Tayler Architects	25 November 2016
Section B-B, Project No 0915, Drawing No. A31, Issue 04	Krikis Tayler Architects	25 November 2016
Apartment Schedule, Project No 0915	Krikis Tayler Architects	24 November 2016
Landscape Plan, Job No. 161114, Dwg No. LP.01/C, Sheet 1 of 1.	Narelle Sonter	December 2016
Material Board, Project No 0915, Drawing No. A60, Issue 06,	Krikis Tayler Architects	25 November 2016
NaTHERS Thermal Performance Specifications (BASIX Thermal Comfort), Certificate Number 0001038340	Robert Mallindine	30 November 2016
BASIX Certificate No. 595696M_03	AGA Consultants	30 November 2016
Access Report	Accessibility Solutions (NSW) Pty Ltd	29 November 2016
Flood Advice for 278 Bunnerong Road, Hillsdale	Cardno	23 November 2016
WC297-02F01- WS Memo	Windtech Consultants Pty Ltd	28 November 2016
Arboricultural Impact Assessment	Tree Wise Men	December 2016
Site Audit Report No. 0503-0705	JBS & G	Dated 22 July 2013 Received 22 December 2014
BCA Compliance Capability Report	Vic Lilli & Partners Consulting	28 November 2016

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $50,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Consent is granted to Development Application DA-14/318 for the construction of two residential flat buildings containing 84 units comprising; 28 x 1 bedroom units, 50 x 2 bedroom units and 6 x 3 bedroom units with basement car parking levels accommodating 157 car spaces on the land at 278 Bunnerong Road, Hillsdale, subject to the conditions as contained in Annexure “A”.

…………….

Susan Dixon

Commissioner

163500.16 - Annexure A - Conditions of Consent (270 KB, pdf)