Jiankai Development Pty Ltd v City of Canada Bay Council

[2017] NSWLEC 1647

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jiankai Development Pty Ltd v City of Canada Bay Council [2017] NSWLEC 1647
Hearing dates:	Conciliation conference on 21 September, 18 & 27 October 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION – boarding house - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Jiankai Development Pty Ltd (Applicant) City of Canada Bay Council (Respondent)
Representation:	Solicitor: Ms A Spizzo, Landerer & Company (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2017/158896
Publication restriction:	No

Judgment

1. COMMISSIONER: This matter concerns an appeal by Jiankai Development Pty Ltd against the refusal by City of Canada Bay Council of an application for the demolition of existing structures and construction of a new two-three storey boarding house in two built forms with 22 rooms (single and double), manager’s room, office and communal room, basement parking and associated landscaping at 154 Wellbank Street, North Strathfield. Following 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 granted leave to rely upon the following amended plans and documents:

S34 A0020 Issue E	Room Schedule	Ghazi Al Ali Architect	26 October 2017
S34 A1201 Issue D	Basement Plan	Ghazi Al Ali Architect	11 October 2017
S34 A1202 Issue D	Ground Floor Plan	Ghazi Al Ali Architect	11 October 2017
S34 A1203 Issue D	Level 01 Plan	Ghazi Al Ali Architect	11 October 2017
S34 A1204 Issue E	Level 02 Plan	Ghazi Al Ali Architect	26 October 2017
S34 A1205 Issue E	Roof Plan	Ghazi Al Ali Architect	26 October 2017
S34 A1301 Issue E	Elevations	Ghazi Al Ali Architect	26 October 2017
S34 A1302 Issue E	Elevations	Ghazi Al Ali Architect	26 October 2017
S34 A1401 Issue E	Sections	Ghazi Al Ali Architect	26 October 2017
S34 A2000 Issue E	GFA Calculations	Ghazi Al Ali Architect	26 October 2017
Basix Certificate No. 793443M_04	BASIX Certificate	Sustainable Thermal Solutions	9 November 2017

2. The Applicant is to pay the 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 sum of $12,000 within 28 days.

3. The appeal is upheld.

4. Development Application No. DA 2016/0255 for the demolition of existing structures and construction of a new two-three storey boarding house in two built forms with 22 rooms (single and double), manager’s room, office and communal room, basement parking and associated landscaping at 154 Wellbank Street, North Strathfield, is approved, subject to the conditions set out in Annexure “A”.

……………………….

Commissioner Gray

Annexure A (528 KB, pdf)