Scape Australia Management Pty Ltd v The Council of the City of Sydney

[2018] NSWLEC 1340

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Scape Australia Management Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 1340
Hearing dates:	Conciliation conference on 9 and 26 April 2018; 1, 15, and 28 June 2018
Date of orders:	18 July 2018
Decision date:	18 July 2018
Jurisdiction:	Class 1
Before:	Walsh 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:	Scape Australia Management Pty Ltd (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) Solicitors: F Rourke, Allens (Applicant) K Morrin, Council of the City of Sydney (Respondent)
File Number(s):	2017/322574
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. That leave is granted to the Applicant to amend its Development Application No. D/2016/1388 by relying on the plans and other documents referred to in Condition (1)(a) of the Conditions of Consent at Annexure ‘A’.

2. Pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application, as agreed or assessed.

3. The written request to depart from the numerical standard for motorcycle parking on the site set out in “Clause 4.6 Variation to Motorcycle Parking Development Standard” prepared by Urban Ethos dated 12 July 2018 pursuant to Sydney Local Environmental Plan 2012 is upheld.

4. The appeal is upheld.

5. Pursuant to s8.7 of the Environmental Planning and Assessment Act 1979, development consent is granted to Development Application No. D/2016/1388 for demolition of existing buildings and structures, tree removal and site excavation, construction of a building ranging in height from 3 to 5 storeys for student accommodation including 201 studio units, communal student facilities and landscaping at 35-47 Wilson Lane, Darlington in accordance with the Conditions of Consent, as set out in Annexure ‘A’.

6. The Respondent’s reasons for agreement to the terms of the decision are set out in Annexure ‘B’.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A

Annexure B

Walsh C (Plans)_Part1 (8.07 MB, pdf)

Walsh C (Plans)_Part2 (9.73 MB, pdf)

Walsh C (Plans)_Part3 (5.00 MB, pdf)

Amendments

19 July 2018 - Plans annexed.