Karimbla Construction Services (NSW) Pty Ltd v The Council of the City of Sydney

[2018] NSWLEC 1520

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Karimbla Construction Services (NSW) Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1520
Hearing dates:	Conciliation conference on 18 September 2018
Date of orders:	04 October 2018
Decision date:	04 October 2018
Jurisdiction:	Class 1
Before:	Walsh 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:	Karimbla Construction Services (NSW) Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: C McEwen with S Nash (Applicant) P Clay SC (Respondent) Solicitors: Meriton Group General Counsel (Applicant) The Council of the City of Sydney (Respondent)
File Number(s):	2018/176524
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 Appeal is upheld.

2. Section 4.55(1A) application no. D/2016/1355/K lodged with the Respondent on 18 April 2018 to modify condition 14 of Development Consent No. D/2016/1355/I for integrated development for four residential flat buildings with basement parking, private recreation facilities, public domain works and landscaping is determined by approving the modification as set out in Annexure A.

3. As a consequence of order (2), Development Consent No. D/2016/1355/K is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

The Court notes the agreement of the parties that:

• The Respondent is to pay the Applicant the amount of $2,541,356.90 by way of partial refund of the section 7.11 (former s.94) contribution paid by the Applicant on 10 October 2017 within 30 days of the deed of release referred to in (b) below.

• The parties are to execute a deed of release in relation to the settlement referred to in (a) above to reflect the fact that the payment by the Respondent to the Applicant of $2,541,356.90 referred to above is in full and final settlement of any amount due and owing to the Applicant as a result of the terms of the decision set out in paragraph 2 above.

• Each party is to pay their own costs of the proceedings.

……………………….

P Walsh

Commissioner of the Court

Annexure A (Mod C)

Annexure B (C)

Amendments

10 October 2018 - Correction to representation.