KongHwa Laundry (Sydney) Pty Ltd v Cumberland Council

[2017] NSWLEC 1497

Land and Environment Court

New South Wales

Medium Neutral Citation:	KongHwa Laundry (Sydney) Pty Ltd v Cumberland Council [2017] NSWLEC 1497
Hearing dates:	Conciliation conference on 8 September 2017
Date of orders:	12 September 2017
Decision date:	12 September 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: use of building as commercial laundry; 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:	KongHwa Laundry (Sydney) Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: Mr M Mantei, Planning Law Solutions (Applicant) Ms J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2017/229201
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Consent No. DA-2016/8/1 for the use of an existing factory building as a commercial laundry 84-88 Warren Road, Smithfield.

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. Leave is granted to rely on the following documents that are the subject of Modification Application No. 2016/8/2:

Document reference	Document Name	Prepared by	Dated
6179-3.1R	Environmental Noise Assessment	Day Design Pty Ltd	17 August 2017
Plan of Management	Kong Hwa Laundry (Sydney) Pty Ltd	August 2017

2. The appeal is upheld.

3. Development Consent No. DA-2016/8/1 for the use of an existing factory building as a commercial laundry operating from 7am to 4pm, Monday-Friday at Lot 42 DP 10958 (84-88 Warren Road, Smithfield) is modified pursuant to section 96(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

4. As a consequence of order 3, Development Consent No. 2018/8/1 is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.

……………………….

Commissioner Brown

Annexure A (C) (315 KB, pdf)

Annexure B (C) (239 KB, pdf)