Laoutaris Holdings Pty Ltd v Council of the City of Sydney

[2017] NSWLEC 1541

Land and Environment Court

New South Wales

Medium Neutral Citation:	Laoutaris Holdings Pty Ltd v Council of the City of Sydney [2017] NSWLEC 1541
Hearing dates:	Conciliation conference on 31 August 2017
Date of orders:	28 September 2017
Decision date:	28 September 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: reuse and alteration of an existing building - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Laoutaris Holdings Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Solicitors: Mr A Whealey, Mills Oakley (Applicant) Ms K Morrin, Council of the City of Sydney (Respondent)
File Number(s):	2017/133067
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97 of the Environmental Planning and Assessment Act 1979, against Council’s refusal of development application number D/2017/37. The application sought approval the adaptive reuse of an existing three storey commercial building and construction of two additional storeys. The development is proposed at 44 Foveaux Street, Surry Hills.

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 for the Applicant to rely on the amended plans referred to in condition 1(a) of the conditions of consent in Annexure A.

2. The appeal is upheld.

3. The clause 4.6 written request prepared by ABC Planning Pty Ltd (as amended) dated September 2017 to vary the floor space ratio control under clause 4.4 of Sydney LEP 2012 is upheld.

4. The clause 4.6 written request prepared by ABC Planning Pty Ltd dated November 2016 to vary the height control under clause 4.3 of Sydney LEP 2012 is upheld.

5. Development consent is granted to development application No. D/2017/37 for the adaptive reuse of the existing three storey commercial building and the construction of an additional two storeys above at 44A Foveaux Street, Surry Hills, subject to the conditions of consent in Annexure A.

6. The Applicant is to pay the Respondents costs under s.97B of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $3,000.00.

……………………….

Danielle Dickson

Commissioner of the Land and Environment Court of NSW

Annexure A (C) (290 KB, pdf)

Amended Cl 4.6 - FSR (183 KB, pdf)

Architectural Plans (4.54 MB, pdf)