No 1 Victoria Dragons Pty Limited v Georges River Council

[2018] NSWLEC 1559

Land and Environment Court

New South Wales

Medium Neutral Citation:	No 1 Victoria Dragons Pty Limited v Georges River Council [2018] NSWLEC 1559
Hearing dates:	Conciliation conference on 17 October 2018
Date of orders:	23 October 2018
Decision date:	23 October 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [4] 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:	No 1 Victoria Dragons Pty Limited (Applicant) Georges River Council (Respondent)
Representation:	Counsel: T To (Applicant) S Berveling (Respondent) Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent)
File Number(s):	2017/217118
Publication restriction:	No

Judgment

1. COMMISSIONER: 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”.

2. 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.

3. 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.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely on the amended plans, drawings and documents as referred to in the conditions of consent at Annexure C and listed in the Table set out in Annexure A.

2. The Applicant is to pay the Respondent’s costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) in the amount of $88,000 on or before 21 December 2018 in full and final satisfaction of all the cost orders made in these proceedings. For clarity, all previous costs orders made in these proceedings are set aside.

3. The Clause 4.6 request prepared by Planning Ingenuity with reference M180128 and dated 3 September 2018 (Annexure B) is upheld.

4. The appeal is upheld.

5. Development Application DA9/2017/110/1 for the demolition of existing buildings and construction of a residential flat building comprising ninety six (96) residential dwellings over three (3) levels of basement parking for ninety seven (97) car parking spaces at 11 Stanley Street & 28 - 36 Victoria Street, Kogarah is approved subject to the conditions in Annexure C.

……………………….

J Smithson

Commissioner of the Court

Annexure A (45.0 KB, pdf)

Annexure B (1.93 MB, pdf)

Annexure C (192 KB, pdf)

s34 plans (15.8 MB, pdf)