Sydney Machinery Hire Pty Ltd v Canterbury-Bankstown Council

[2018] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sydney Machinery Hire Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1551
Hearing dates:	Conciliation conference on 12 September 2018
Date of orders:	15 October 2018
Decision date:	15 October 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – hire of construction machinery - 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:	Sydney Machinery Hire Pty Ltd (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) S Kondilios, Hall & Wilcox (Respondent)
File Number(s):	2018/91608
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Sydney Machinery Hire Pty Ltd against the actual refusal by Canterbury-Bankstown Council of Development Application No. DA-167/2017. The application seeks consent for using the existing premises as light industrial for the lease of construction equipment at 77 Lakemba Street, Belmore (Lot 20 DP 5534).

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 given leave to amend the development application and rely upon the following plans in the proceedings:

1. Drawing 005, Proposed Ground Floor Plan, dated 2 October 2018;

2. Drawing 006, Proposed Level 1 Plan, dated 2 October 2018;

3. Drawing 007, Proposed Advertising Signage Plan, dated 2 October 2018.

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $6,000, for payment to Council within 28 days.

3. The appeal is upheld.

4. Development application DA-167/2017 for the use of the existing premises as a light industrial use for the lease of construction equipment at premises known as 77 Lakemba Street, Belmore is approved subject to the conditions in Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A (144 KB, pdf)

Amended Plans (297 KB, pdf)