Milfair Pty Ltd trading as the Arthouse Hotel v The Council of the City of Sydney

[2018] NSWLEC 1297

Land and Environment Court

New South Wales

Medium Neutral Citation:	Milfair Pty Ltd trading as The Arthouse Hotel v The Council of the City of Sydney [2018] NSWLEC 1297
Hearing dates:	Conciliation conference on 31 May 2018 and 14 June 2018
Date of orders:	18 June 2018
Decision date:	18 June 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Milfair Pty Ltd trading as The Arthouse Hotel (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: E Fleming, Swaab Attorneys (Applicant) K Morrin, City of Sydney Council (Respondent)
File Number(s):	2018/34637
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Milfair Pty Ltd trading as The Arthouse Hotel against City of Sydney Council’s deemed refusal of Building Certificate Application (No. BC/100/2017) lodged by the Applicant on 1 December 2017. The application seeks approval for the unauthorised works which include 5 x internal partitions and yellow/gold lighting tracks within the building known as The Arthouse Hotel on part of the land at 275 Pitt Street, Sydney (Lot 111/DP 1014769).

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Appeal is upheld;

2. By 25 January 2019, the Applicant is to carry out the alteration works detailed in the plans prepared by Cracknell & Lonergan, DA101-DA105, Issue A dated 8 May 2018 as attached at Annexure A and in accordance with the conditions at Annexure B;

3. The Court directs the Respondent to issue a Building Information Certificate for application No. BC/100/2017 pursuant to s. 8.25 (3) (a) of the Environmental Planning and Assessment Act 1979 within 14 days of the Applicant complying with Order 5(2);

4. The parties are granted liberty to restore the matter to the list to resolve any dispute as to whether any party has complied with Orders 5(2) and (3) above.

5. Each Party to bear their own costs of the proceedings.

6. The Court notes that Proceedings No. 2017/386622 are stayed until further Order.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (1.90 MB, pdf)

Annexure B (300 KB, pdf)