Sfeir and Associates Investments Pty Ltd v Bayside Council

[2017] NSWLEC 1626

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sfeir & Associates Investments Pty Ltd v Bayside Council [2017] NSWLEC 1626
Hearing dates:	Conciliation conference on 24 October 2017
Date of orders:	06 November 2017
Decision date:	06 November 2017
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Sfeir & Associates Investments Pty Ltd (Applicant) Bayside Council (Respondent)
Representation:	Solicitors: Mr P Saab, Macquarie Lawyers (Applicant) Mr S Schneider, Houston Dearn O’Connor (Respondent)
File Number(s):	2017/163714
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 s34(3) of the Land and Environment Court Act 1979 are:

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

Plan Details	Author	Date
Existing Conditions/Demolition Plan & Site Plan, Drawing No. 01, Issue E	CAD3	25 October 2017
Site Context Plan, Drawing No. 02, Issue E	CAD3	25 October 2017
Site Plan, Basement and Ground Floor Plan, Drawing No. 03, Issue E	CAD3	25 October 2017
Streetscape Elevation, Drawing No. 04, Issue E	CAD3	25 October 2017
Basement Level 2, Drawing No. 05, Issue E	CAD3	25 October 2017
Basement Level 1, Drawing No. 06, Issue E	CAD3	25 October 2017
Ground Floor Plan, Drawing No. 07, Issue E	CAD3	25 October 2017
First Floor Plan, Drawing No. 08, Issue E	CAD3	25 October 2017
Second Floor Plan, Drawing No. 09, Issue E	CAD3	25 October 2017
Third Floor Plan, Drawing No. 10, Issue E	CAD3	25 October 2017
Roof Plan, Drawing No. 11, Issue E	CAD3	25 October 2017
Elevations, Drawing No. 12, Issue E	CAD3	25 October 2017
Elevations, Drawing No. 13, Issue E	CAD3	25 October 2017
Sections, Drawing No. 14, Issue E	CAD3	25 October 2017
Sections, Drawing No. 15, Issue E	CAD3	25 October 2017
Accessible Unit Floor Plan, Drawing No. 16, Issue E	CAD3	25 October 2017
External Finishes Schedule, Drawing No. 17, Issue E	CAD3	25 October 2017
Window & Door Schedule, Drawing No. 18, Issue E	CAD3	25 October 2017
Sun Shadow Diagrams (June), Drawing No. 19, Issue E	CAD3	25 October 2017
Sun Shadow Diagrams (Sept), Drawing No. 20, Issue E	CAD3	25 October 2017
Cross Flow Ventilation, Drawing No. 21, Issue E	CAD3	25 October 2017
GFA Calculation Plans, Drawing No. 22, Issue E	CAD3	25 October 2017
Perspective Views, Drawing No. 23, Issue E	CAD3	25 October 2017
Ramp Long Sections, Drawing No. 24, Issue E	CAD3	25 October 2017
Landscape Intent, Drawing No. 1646-01, Issue B	Jackie Amos Landscape Architect	25 October 2017
Ground Floor Landscape Plan, Drawing No. 1646-02, Issue C	Jackie Amos Landscape Architect	25 October 2017
Basement Landscape Plan, Drawing No. 1646-03, Issue C	Jackie Amos Landscape Architect	25 October 2017
Typical Cross Section Landscape, Drawing No. 1646-04, Issue A	Jackie Amos Landscape Architect	21 March 2017
Proposed Plants, Drawing No. 1646-05, Issue B	Jackie Amos Landscape Architect	25 October 2017
Proposed Plants, Drawing No. 1646-06, Issue A	Jackie Amos Landscape Architect	25 October 2017
Stormwater Concept Plan Basement Level, Sheet 1 of 2, Drawing No. 101, Issue A, dated 10 February 2017	Australian Consulting Engineers	21 March 2017
Stormwater Concept Plan Basement Level, Sheet 2 of 2, Drawing No. 102, Issue A, dated 10 February 2017	Australian Consulting Engineers	21 March 2017
Stormwater Concept Plan Ground Level, Drawing No. 103, Issue A, dated 10 February 2017	Australian Consulting Engineers	21 March 2017
Catchment Plan, Drawing No. 104, Issue A, dated 10 January 2017	Australian Consulting Engineers	21 March 2017
OSD & WSUD Details, Sheet 1 of 2, Drawing No. 105, Issue A, dated 10 January 2017	Australian Consulting Engineers	21 March 2017
OSD & WSUD Details, Sheet 2 of 2, Drawing No. 106, Issue A, dated 10 January 2017	Australian Consulting Engineers	21 March 2017
Miscellaneous Details, Drawing No. 107, Issue A, dated 10 January 2017	Australian Consulting Engineers	21 March 2017
Documents	Author	Dated
Statement of Environmental Effects, dated February 2017	Wales & Associates Pty Ltd	21 March 2017
Clause 4.6 Variation, dated October 2017	Wales & Associates Pty Ltd	25 October 2017
SEPP 65 Design Verification Statement, dated 31 January 2017	Boris Nedik Architect	21 March 2017
Building Code of Australia Compliance Assessment Report, Report No. 7191 Rev 01, dated February 2017	AED Group	21 March 2017
Access Report, Report No. 7191-Rev 01, dated February 2017	AED Group	21 March 2017
Traffic & Parking Impact Assessment, Report No. P2946.001R, dated 31 January 2017	Bitzios Consulting	21 March 2017
Survey Plan, Ref No. 58308001A, dated 20 May 2016	Hill & Blume Consulting Surveyors	21 March 2017
Arboricultural Impact Assessment, dated 19 January 2017	Advanced Treescape Consulting	21 March 2017
Waste Management Plan, dated 18 February 2017	Wales & Associates	21 March 2017
Geotechnical Investigation, Ref No. 13936/1-AA, dated 10 February 2017	Geotechnique Pty Ltd	21 March 2017
Quantity Survey Report, dated 12 January 2017	Construction Consultants	21 March 2017

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 as assessed and agreed within 28 days of the date of these orders.

3. The Applicant’s written request submitted pursuant to clause 4.6(2) of the Parramatta Local Environmental Plan 2011 in relation to the contravention of the development standard for height in clause 4.6(2) of Botany Bay Local Environmental Plan 2013 is accepted, and the request to contravene the development standard in clause 4.6(2) is upheld

4. The appeal is upheld.

5. Development consent is granted to Development Application No. 2017/1036 for the demolition of existing dwellings and improvements and construction of residential flat building consisting of sixteen (16) units and basement car parking, subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Commissioner Bish

Annexure A (C) (297 KB, pdf)