Kirrawee Childcare Unit Trust v Sutherland Shire Council

[2017] NSWLEC 1249

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kirrawee Childcare Unit Trust v Sutherland Shire Council [2017] NSWLEC 1249
Hearing dates:	Conciliation conference on 15 May 2017
Date of orders:	23 May 2017
Decision date:	23 May 2017
Jurisdiction:	Class 1
Before:	Chilcott 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:	Kirrawee Childcare Unit Trust (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitor: Mr J Hones, Hones Lawyers (Applicant) Ms J Maree, Sutherland Shire Council (Respondent)
File Number(s):	2016/328312
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 be upheld.

2. Leave be granted to the Applicant to rely upon the following plans and documents:

Plan number	Reference	Prepared by	Date
A0101 Revision B	Proposed Site Plan	Liquid Design	Amended 2 September 2016
A1000 Revision A	Demolition Lower Ground	Liquid Design	Amended 22 August 2016
A1001 Revision A	Demolition Upper Ground	Liquid Design	Amended 22 August 2016
A1002 Revision A	Demolition Roof Plan	Liquid Design	Amended 22 August 2016
A1010 Revision A	Demolition North and East Elevations	Liquid Design	Amended 22 August 2016
A1011 Revision A	Demolition South and West Elevations	Liquid Design	Amended 22 August 2016
A9550 Revision A	Playground Sun and Shading	Liquid Design	14 December 2016
A1100 Revision E	Proposed Lower Ground	Liquid Design	Amended 14 December 2016
A1101 Revision F	Proposed Upper Ground	Liquid Design	Amended 22 March 2017
A1102 Revision C	Proposed Roof	Liquid Design	Amended 8 September 2016
Sheet L01 Revision 2	Landscape Masterplan Upper Level	Edible Kids Gardens	16 December 2016
Sheet L02 Revision 2	Landscape Masterplan Lower Ground Level	Edible Kids Gardens	16 December 2016
Sheet L03 Revision2	Planting and Maintenance Plan Upper Level	Edible Kids Gardens	16 December 2016
A3000 Revision D	Proposed North and East Elevations	Liquid Design	Amended 14 December 2016
Plan number	Reference	Prepared by	Date
A3001 Revision D	Proposed South and West Elevations	Liquid Design	Amended 14 December 2016
A3100 Revision C	Proposed Sections 1	Liquid Designs	Amended 30 August 2016
A3101 Revision B	Proposed Sections 2	Liquid Designs	Amended 30 August 2016
A7001 Revision A	Kitchen, Laundry, Prep Kitch and Toilet Plans	Liquid Designs	Amended 22 August 2016
GO160602 Issue B Drawing C1	Coversheet and Notes	ACOR Consultants	Amended 24 August 2016
GO160602 Issue B Drawing C2	Stormwater Management Plan	ACOR Consultants	Amended 24 August 2016
GO160602 Issue B Drawing C3	Stormwater Management Plan – Roof Layout	ACOR Consultants	Amended 24 August 2016
GO160602 Issue B Drawing C4	Stormwater Management Details Sheet No. 1	ACOR Consultants	Amended 24 August 2016
Plan of Management	Plan of Management	16 May 2017
Acoustic Assessment Report	Acoustic Assessment Report	N G Childs and Associates	22 August 2016

3. Pursuant to section 97B of the Environmental Planning and Assessment Act, the applicant is to pay those costs of the consent authority, namely the respondent, that are thrown away as a result of amending the development application in the fixed amount of $2,000.00.

4. Development Consent be granted to DA16/1170 for alterations and additions to an existing commercial car yard to create a child care centre for 174 children at 112-114 Oak Road, Kirrawee, subject to the Conditions in Annexure “A”.

……………………….

Commissioner Chilcott

328312.16 Chilcott - Plans (19.8 MB, pdf)

328312.16 Chilcott (C) (365 KB, pdf)