Regent Pacific Capital v Sutherland Shire Council

[2016] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation:	Regent Pacific Capital v Sutherland Shire Council [2016] NSWLEC 1429
Hearing dates:	Conciliation conference on 12 July, 23 August, 6 September 2016
Date of orders:	15 September 2016
Decision date:	15 September 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and construction of a mixed use development: 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:	Regent Pacific Capital (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Marc Jaku (Applicant) Janelle Amy (Respondent) Solicitors: Jaku Legal (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2016/00161661
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No DA 15/1325 for the demolition of existing structures and construction of a mixed use development at 1081, 1085 and 1091A Old Pacific Highway Engadine.

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, 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 upon amended plans referred to in Condition 1 of the conditions of consent annexed hereto and marked “Annexure A”.

2. The Applicant is to pay the Respondent’s costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The Appeal is upheld.

4. Development Consent is granted to Development Application No. DA15/1325 for the demolition of existing structures and construction of a mixed use development, including 115 residential apartments with ground floor commercial and basement car parking at 1081, 1085 and 1091A Old Princes Highway, Engadine, subject to the conditions of consent annexed hereto and marked “Annexure A”.

5. The Applicant’s clause 4.6 submission in relation to the height standard pursuant to clause 4.3 of Sutherland Shire Local Environmental Plan 2015 is considered acceptable.

…………….

G T Brown

Commissioner

161661.16 - Annexure A (143 KB, pdf)