McPherson Street Construction Pty Ltd v Bayside Council

[2018] NSWLEC 1125

Land and Environment Court

New South Wales

Medium Neutral Citation:	McPherson Street Construction Pty Ltd v Bayside Council [2018] NSWLEC 1125
Hearing dates:	Conciliation conference on 19 January 2018, 12 February 2018, 26 February 2018, 9 March 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	(Applicant) Bayside Council (Respondent)
Representation:	Solicitor: Matt Sonter, Mills Oakley (Applicant) Rachael Knapman, HWL Ebsworth (Respondent)
File Number(s):	2017/290405
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Bayside Council of development application DA 2017/1071. The application sought consent for the construction of eight (8) industrial units, business identification signage and strata subdivision of the land. Seven (7) of the units are to be used for warehousing, storage and distribution; and one (1) of the units (the furthest from McPherson Street and closest to potentially hazardous industries) is to be used as a distillery with associated warehousing storage and distribution. The works are proposed at 28A McPherson Street, Banksmeadow.

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 and documents as referred to in condition 1 of the conditions of consent contained in Annexure “A”.

2. The Applicant is to pay the Respondent's costs thrown away under s 97B of the Environmental Planning and Assessment Act 1979 in the agreed amount of $9,200 within 28 days.

3. The appeal is upheld.

4. Development application no. 2017/1071 for the construction of eight (8) industrial units, occupation of Unit 8 as a distillery, business identification signage and strata subdivision of the land at 28A McPherson Street, Banksmeadow is approved subject to the conditions in Annexure "A".

……………………….

DM Dickson

Commissioner of the Court

Annexure A (85.9 KB, pdf)

Annexure B (5.12 MB, pdf)

Annexure C (10.7 MB, pdf)