Sivabalakan v Cumberland Council

[2016] NSWLEC 1612

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sivabalakan v Cumberland Council [2016] NSWLEC 1612
Hearing dates:	Conciliation conference on 30 November 2016
Date of orders:	19 December 2016
Decision date:	19 December 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION; demolition of all improvements and construction of a residential flat building; 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:	Sharmila Sivabalakan (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/00257346
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No 2016/180/1 for demolition of all improvements and construction of a residential flat building at 28 Patricia Street Mays Hill.

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. 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:

Title	Drawing No.	Date	Revision	Prepared by
Site Analysis	A001	November 2016	D	Gus Fares Architects
Site Information/ 3D Views/ Adaptable Housing Details	A002	November 2016	D	Gus Fares Architects
Basement Plan	A101	November 2016	D	Gus Fares Architects
Ground Floor/Typical Unit Layout	A102	November 2016	D	Gus Fares Architects
1st Floor/ 2nd & 3rd Floor	A103	November 2016	D	Gus Fares Architects
4th Floor	A104	November 2016	D	Gus Fares Architects
Elevations (North-South) /Schedule of Finishes	A201	November 2016	D	Gus Fares Architects
Elevations (West-East)/Streetscape Analysis	A202	November 2016	D	Gus Fares Architects
Sections/ Driveway Sections	A301	November 2016	D	Gus Fares Architects
Solar Access Study/ Cross Ventilation Study	A401	November 2016	D	Gus Fares Architects
Shadow Diagrams/ Wider Local Context (Current)	A402	November 2016	D	Gus Fares Architects
Shadow Diagrams/ Wider Local Context (Potential)	A403	November 2016	D	Gus Fares Architects
Landscape Plan	2016.0501DA1-1	1 November 2016	B	TSG Landscape Architects
Landscape Plan	2016.0501DA1-2	1 November 2016	B	TSG Landscape Architects
Cover Sheet, Legend & Drawing Schedule	D00	31 October 2016	B	Australian Consulting Engineers
Basement Stormwater Drainage Plan	D01	31 October 2016	C	Australian Consulting Engineers
Ground Floor Stormwater Drainage Plan	D02	31 October 2016	C	Australian Consulting Engineers
Site Stormwater Drainage Details 1	D03	31 October 2016	C	Australian Consulting Engineers
Site Stormwater Drainage Details 2	D04	31 October 2016	C	Australian Consulting Engineers
Erosion and Sediment Control Plan & Details	D05	31 October 2016	C	Australian Consulting Engineers

Document Title	Prepared by	Dated
BASIX Certificate No. 721562M_02	1 December 2016
Arboricultural Impact Assessment Report	Horticultural Management Services	5 December 2016

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 in the amount of $5,000.00 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. 2016/180/1 for the demolition of existing structures and construction of a part 5, part 4 storey residential flat building comprising 13 units over basement parking accommodating 13 car parking spaces, on the land at 28 Patricia Street, Mays Hill, subject to the conditions of consent annexed hereto and marked “A”.

…………….

G T Brown

Commissioner

257346.16 (C) gtb (548 KB, pdf)

257346.16 - Final approved plans (6.69 MB, pdf)