Karimbla Constructions Services (NSW) Pty Limited v Waverley Council

[2016] NSWLEC 1627

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Karimbla Constructions Services (NSW) Pty Limited v Waverley Council [2016] NSWLEC 1627
Hearing dates:	Conciliation conference on 21 November, 7 Decemrber 2016
Date of orders:	22 December 2016
Decision date:	22 December 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and construction of a 4 storey serviced apartment building; 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:	Karimbla Constructions Services (NSW) Pty Limited (Applicant) Waverley Council (Respondent)
Representation:	Mr C McEwen SC with Mr S Nash instructed by Mr J Callaghan, General Counsel, Meriton Property Group (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/245505
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA No 220/2016 for the demolition of existing improvements and construction of a 4 storey serviced apartment building at 95-97 Grafton Street and 420-422 Oxford Street Bondi Junction.

2. 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”.

3. 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.

4. 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.

5. 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 on the amended plans referred to in Condition 1 of Annexure ‘A’.

2. The applicant is to pay the respondent’s costs thrown away for the purpose of section 97B of the Environmental Planning and Assessment Act 1979 agreed at $5,000 within 28 days.

3. The Appeal is upheld and Development Consent No. DA220/2016 is now approved subject to the conditions of development consent set out in Annexure ‘A’.

…………….

Commissioner Brown

245505.16 Brown (C) (393 KB, pdf)

Amendments

31 January 2017 - Applicants representation amended