JKN Australia Pty Ltd v Bayside City Council

[2016] NSWLEC 1595

Land and Environment Court

New South Wales

Medium Neutral Citation:	JKN Australia Pty Ltd v Bayside City Council [2016] NSWLEC 1595
Hearing dates:	Conciliation conference on 12 December 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
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:	JKN Australia Pty Ltd (Applicant) Bayside City Council (Respondent)
Representation:	Counsel: Mr P Clay SC (Applicant) Mr M Staunton (Respondent)   Solicitors: Lander & Rogers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	152527 of 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 appeal is upheld.

2. The clause 4.6 requests with respect to height and FSR as prepared by LJB Urban Planning and annexed to the agreement are upheld.

3. Development application 2014/68/1 for the redevelopment of the existing industrial site for a mixed use development comprising: 2 residential flat buildings ranging in height between 4 to 7 storeys, containing in total 269 residential apartments and 2 retail tenancies (323m2), above 2 levels of basement car park for 479 spaces, subject to the conditions of consent at annexure “A”.

4. The Court notes: in relation to the costs order made by the Registrar on 11 November 2016, the parties agree to the amount of $35,000 in relation to the Council's costs thrown away, with those costs to be paid to the Council within 28 days of the date of these orders.

………………..

Sue Morris

Commissioner

152527.16 Morris (C) Annexure A (414 KB, pdf)

152527.2016 Annexed sketch plans (16.3 MB, pdf)