Parker Logan Property Pty Ltd v Bayside Council

[2018] NSWLEC 1175

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Bayside Council [2018] NSWLEC 1175
Hearing dates:	Conciliation conference on 6 April 2018
Date of orders:	06 April 2018
Decision date:	06 April 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:	Parker Logan Property Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Solicitor: Anthony Boskovitz, Boskovitz & Associates (Applicant) John Cole, HWL Ebsworth (Respondent)
File Number(s):	2017/195991
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal by Bayside Council of development application No. .2017/1063. The proposal involves the demolition of existing structures and construction of a new part three (3) part four (4) storey with attic level boarding house containing 73 self-contained rooms, including 4 adaptable units, a manager dwelling, a communal room and a communal open space on the ground floor level, and basement level car parking at 25-29 Daphne Street, Botany (Lots 1, 2 and 3 DP 227575).

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 to rely on the amended plans at Annexure A and as referred to in condition 1 of Annexure B.

2. The applicant is to pay the respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $15,500 within 28 days of these orders.

3. The appeal is upheld;

4. Development Application No. 2017/1063 for the demolition of the existing industrial/warehouse buildings and the construction of a 66 room boarding house and associated structures at 25-29 Daphne Street, Botany, is approved subject to the conditions within Annexure B.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (4.43 MB, pdf)

Annexure B (138 KB, pdf)