Tribeca Property Developers Pty Ltd v Georges River Council

[2018] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tribeca Property Developers Pty Ltd v Georges River Council [2018] NSWLEC 1344
Hearing dates:	Conciliation conference on 6 July 2018
Date of orders:	06 July 2018
Decision date:	06 July 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning & Assessment Act 1979 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Tribeca Property Developers Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: B Hayward, Mills Oakley Lawyers (Applicant) G Garrett, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/385110
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely on the amended plans and documents as filed with the Court on 6 July 2018 and as referred to in condition 1 of the conditions of consent contained in Annexure “A”.

2. The parties agree that the amendments made to the plans are not minor for the purposes of section 8.15(3) of the Environmental Planning & Assessment Act 1979 (the Act). The Applicant is to pay the Respondent’s costs, pursuant to section 8.15(3) of the Act in the sum of $6000.00 within 21 days of the date of this agreement.

3. The written request made, pursuant to clause 4.6 of the Kogarah Local Environmental Plan 2012, to vary the minimum lot size standard set out in “Annexure 2” of the Statement of Environmental Effects prepared by Rod Logan Planning, dated 17 October 2017 is upheld.

4. The written request made, pursuant to clause 4.6 of Kogarah Local Environmental Plan 2012, to vary the maximum building height standard set out in “Clause 4.6 Exception to Development Standards” prepared by Rod Logan Planning (undated) is upheld.

5. The appeal is upheld.

6. Development application no. DA2017/0496 for the demolition of existing structures and construction of a four (4) storey residential flat building comprising of fourteen (14) units with partially below ground basement car parking at 35-37 Empress Street, Hurstville, is approved subject to the conditions contained at Annexure “A”.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (472 KB, pdf)

Amended Plans and Documents (10.4 MB, pdf)