TQUE Pty Limited v The Council of the City of Sydney

[2017] NSWLEC 1551

Land and Environment Court

New South Wales

Medium Neutral Citation:	TQUE Pty Limited v The Council of the City of Sydney [2017] NSWLEC 1551
Hearing dates:	Conciliation conference on 28 April 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Jurisdiction:	Class 1
Before:	Chilcott 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:	TQUE Pty Limited (Applicant) Council of the City of Sydney (Respondent)
Representation:	Solicitor: Mr S Kondilios, Hall & Wilcox Lawyers (Applicant) Mr K Morrin, Sydney City Council(Respondent)
File Number(s):	2016/384244
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. Leave is granted for the Applicant to rely on the amended plans as referred to in the conditions of consent contained in Annexure “A”.

2. Pursuant to clause 4.6 of the Sydney Local Environmental Plan 2012 (SLEP 2012), the Applicant’s written request has adequately demonstrated that, based on the amended plans:

1. compliance with clause 4.4 Floor Space Ration of SLEP 2012 would be unreasonable or unnecessary in the circumstances;

2. there are sufficient environmental planning grounds to justify contravening the development standard; and

3. the proposed development will be in the public interest because it is consistent with the objectives of clause 4.4 of SLEP 2012 and the objectives for development within the B4 – Mixed Use Zone.

3. In accordance with section 97B of the Act, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments as agreed or assessed.

4. The appeal is upheld.

5. Consent is granted to Development application No. D/2016/1218 for alterations and additions to the existing building creating an additional nine (9) hotel rooms and alterations to the ground floor with the creation of a bar-restaurant space on the southern side of the ground floor, known as Lots 13, 14 and 15 in Deposited Plan 81 at 304-308 Victoria Street, Darlinghurst, subject to the conditions set out in Annexure “A”.

……………………….

Commissioner Chilcott

Annexure A (5.89 MB, pdf)