Sivabalakan v Cumberland Council

[2018] NSWLEC 1572

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sivabalakan v Cumberland Council [2018] NSWLEC 1572
Hearing dates:	Conciliation conference on 26 October 2018
Date of orders:	05 November 2018
Decision date:	05 November 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Sharmila Sivabalakan (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) J Corradini-Bird, Marsdens Law Group (Respondent)
File Number(s):	2017/316269
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Sharmila Sivabalakan against the deemed refusal by Cumberland Council of development application No. DA-382/2017 in relation to, 1 Patricia Street, Mays Hill (Lot 82 in DP 13239). The application seeks consent for the demolition of the existing buildings and ancillary structures on-site, construction of a four (4) storey residential flat building comprising sixteen (16) units over a basement parking providing for nineteen (19) vehicles (excluding the communal car wash space) and associated landscape works.

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 2 of Annexure “A”.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 2017/382/1 seeking consent for the demolition of existing structures and construction of a 4 storey residential flat building with  16 residential units (7 x 1 bedroom, 8 x 2 bedroom and 1 x 3 bedroom) over basement car parking accommodating 18 car parking spaces (15 residential and 3 visitor) plus car wash bay, and associated landscape works on the land at 1 Patricia Street, Mays Hill subject to the condition of consent annexed hereto and marked “A”.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (399 KB, pdf)

Plans (17.7 MB, pdf)