Olsson and Associates Architects Pty Ltd v City of Botany Bay

[2016] NSWLEC 1254

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Olsson & Associates Architects Pty Ltd v City of Botany Bay [2016] NSWLEC 1254
Hearing dates:	Conciliation conference on 9 December 2015, 9 February, 13 April, 30 May, 3, 17 June 2016
Date of orders:	17 June 2016
Decision date:	17 June 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	See (4) below
Catchwords:	Development Application: construction of 2 x residential flat buildings containing 108 apartments & 2 commercial units and 4 levels of parking. Acoustic privacy, building design, depth/separation, privacy, ventilation, solar access, site isolation, car parking, waste management; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Olsson & Associates Architects Pty Ltd (Applicant) City of Botany Bay (Respondent)
Representation:	Solicitors: Mr Matt Sonter, Mills Oakley Lawyers (Applicant) Ms Alice Spizzo, Landerer & Company (Respondent)
File Number(s):	159513 of 2016
Publication restriction:	No

Judgment

1. ACTING 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, 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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend the development application by substituting the following plans as the plans relied upon for the purpose of the development application:

Drawing	Title	Rev	Rev Date (Month)
DA01	Project Summary	N	MAY
DA02	Site Plan	L	MAY
DA03	Basement 2	M	MAY
Da03.1	Basement 1	M	MAY
DA04	Ground (Church Avenue)	M	MAY
DA05	Level 1 (John Street Entry)	M	MAY
DA06	Level 2 (Lower Podium)	L	MAY
DA07.1	Level 3 - 8 (Typ. Apartments)	L	MAY
DA07.2	Level 9-10 (Typ. Apartments)	L	MAY
DA07.3	Level 11 - 12 (Typ. Apartments)	L	MAY
DA07.4	Level 13	L	MAY
DA11	Roof Plan	M	MAY
DA12	Elevations - North/South	M	MAY
DA13	Elevations - West	M	MAY
DA14	Elevations - East	M	MAY
DA15	North Elevation Building B	M	MAY
DA16	South Elevation Building A	M	MAY
DA17	Section A-A	L	MAY
DA18	Materials and Finishes	L	MAY
DA019	GFA Calculations	M	MAY
DA020	GFA Calculations	L	MAY
DA23	Public Domain Perspectives	C	MAY
DA26.1	222-228 Coward Street View Loss Analysis - 2 Tower Proposal	C	MAY
DA26.2	222-228 Coward Street View Loss Analysis - 3 Tower Proposal	A	MAY

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the amount of $45,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application DA 271/2013 for demolition of the existing structures, site excavation, remediation, and construction of two residential flat buildings containing 108 residential apartments and 2 commercial units facing both street frontages including 4 levels of parking to accommodate 208 vehicles at 27 Church Avenue, 18A and 20-22 John Street, Mascot is approved subject to the conditions contained in Annexure “A”.

…………….

R Hussey

Acting Commissioner

159513.16 - Annexure A - Amended on 21 September 2016 (217 KB, pdf)

159513.16 Plans (10.6 MB, pdf)

Amendments

28 September 2016 - Amended 'Annexure A'.