Landmark Group Australia Pty Ltd v Cumberland Council

[2016] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:	Landmark Group Australia Pty Ltd v Cumberland Council [2016] NSWLEC 1616
Hearing dates:	Conciliation conference on 5, 21,29 September 2016, 4,22,30 November 2016, 8 December 2016
Date of orders:	20 December 2016
Decision date:	20 December 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: construction of a residential flat 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:	Landmark Group Australia Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Ms S Orbell, Mills Oakley (Applicant) Ms P Hudson, Marsdens Law Group (Respondent)
File Number(s):	2016/178016
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No DA80/2016 for the construction of a residential flat building at 1-7, 9-11 Neil Street, Merrylands.

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 as referred to in the conditions of consent contained in Annexure “A” which are as follows:

DA-0.03, Site Plan, Revision G	5 August 2016
DA-0.04, Site Analysis, Revision G	5 August 2016
DA-1.01, Basement Three Plan, Revision E	5 August 2016
DA-1.02, Basement Two Plan, Revision F	10 October 2016
DA-1.03, Basement One Plan, Revision E	5 August 2016
DA-1.04, Ground Floor Plan, Revision H	10 October 2016
DA-1.05, Level 1 Floor Plan, Revision G	10 October 2016
DA-1.06, Level 2-7 Floor Plan, Revision G	10 October 2016
DA-1.07, Level 8 Floor Plan, Revision H	10 October 2016
DA-1.08, Roof Plan, Revision G	10 October 2016
DA-2.01, North Elevation, Revision G	8 June 2016
DA-2.02, South Elevation, Revision H	10 October 2016
DA-2.03, West Elevation, Revision F	10 October 2016
DA-2.04, South East Elevation, Revision F	5 August 2016
DA-3.01, Section A, Revision F	12 April 2016
DA-3.02, Section B, Revision C	5 August 2016
DA-3.03, Section C, Revision A	17 September 2015
DA-6.04, Exterior Finishes, Revision B	4 August 2016

2. The Applicant is to pay the Respondent’s costs arising under section 97B of the Environmental Planning and Assessment Act 1979 in the agreed amount of $5,000 within 28 days of the date of these Orders.

3. The appeal is upheld.

4. Development application no. DA80/2016 for construction of a residential flat building comprising 120 residential units and basement parking (ie: Building 1) at 1-7 and 9-11 Neil Street, Holroyd NSW 2142 is approved subject to the conditions of consent contained in Annexure “A”.

…………….

Commissioner G Brown

178016.16 Brown (C) (491 KB, pdf)