XZ International Holding Pty Ltd v Canterbury-Bankstown Council

[2017] NSWLEC 1469

Land and Environment Court

New South Wales

Medium Neutral Citation:	XZ International Holding Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1469
Hearing dates:	Conciliation conference on 21 July and 11 August 2017
Date of orders:	29 August 2017
Decision date:	29 August 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	XZ International Holding Pty Ltd (Applicant) Canterbury-Bankstown Council(Respondent)
Representation:	Counsel: Mr R O’Gorman-Hughes (Applicant) Solicitors: Mr A Whealy, Mills Oakley (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/60148
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 to substitute the following plans for the plans and documents that are the subject of Development Application No. DA-304/2016:

Plan No.	Plan Name	Revision No.	Drawn by	Dated
DA 000	Cover sheet	C	CDA Architects	27/07/2017
DA 002	Site Plan	C	CDA Architects	27/07/2017
DA 100	Basement Level 02 Floor Plan	C	CDA Architects	27/07/2017
DA 101	Basement Level 01 Floor Plan	C	CDA Architects	27/07/2017
DA 102	Ground Floor Plan	C	CDA Architects	27/07/2017
DA 103	Level 01 Floor Plan	C	CDA Architects	27/07/2017
DA 104	Level 02 Floor Plan	C	CDA Architects	27/07/2017
DA 105	Level 03 Floor Plan	C	CDA Architects	27/07/2017
DA 106	Level 04 Floor Plan	C	CDA Architects	27/07/2017
DA 107	Level 05 Floor Plan	C	CDA Architects	27/07/2017
DA 108	Level 06 Floor Plan	C	CDA Architects	27/07/2017
DA 109	Roof Terrace Plan	C	CDA Architects	27/07/2017
DA 110	Roof Level Plan	B	CDA Architects	27/07/2017
DA 200	North Elevation	C	CDA Architects	27/07/2017
DA 201	East Elevation	C	CDA Architects	27/07/2017
DA 202	West Elevation	C	CDA Architects	27/07/2017
DA 203	Inner Elevations	C	CDA Architects	27/07/2017
DA 300	Section A	C	CDA Architects	27/07/2017
DA 500	Pre + Post Adaptable unit layout	B	CDA Architects	27/04/2017
DA 600	Shadow Diagrams	C	CDA Architects	27/07/2017
DA 700	GFA Calculation	C	CDA Architects	27/07/2017
DA 701	Solar Access Plan	C	CDA Architects	27/07/2017
DA 702	Ventilation Diagrams	C	CDA Architects	27/07/2017
DA 706	3D Views	C	CDA Architects	27/07/2017
DA 730	Finishes Schedule	C	CDA Architects	27/07/2017
DA 740	Sun View 9AM	B	CDA Architects	27/07/2017
DA 740-1	Sun View 9:30AM	A	CDA Architects	27/04/2017
DA 741	Sun View 10AM	B	CDA Architects	27/07/2017
DA 741-1	Sun View 10:30AM	A	CDA Architects	27/04/2017
DA 742	Sun View 11AM	B	CDA Architects	27/07/2017
DA 742-1	Sun View 11:30AM	A	CDA Architects	27/04/2017
DA 743	Sun View 12PM	B	CDA Architects	27/07/2017
DA 744	Sun View 1PM	B	CDA Architects	27/07/2017
DA 745	Sun View 2PM	B	CDA Architects	27/07/2017
DA 746	Sun View 3PM	B	CDA Architects	27/07/2017
DA 747	Solar Schedule	B	CDA Architects	27/07/2017
DA 750	Neighbour Solar Access Study – Sheet 1	B	CDA Architects	27/07/2017
DA 751	Neighbour Solar Access Study – Sheet 2	B	CDA Architects	27/07/2017
DA 752	Neighbour Solar Access Study – Sheet 3	B	CDA Architects	27/07/2017
DA 753	Neighbour Solar Access Study – Sheet 4	B	CDA Architects	27/07/2017
DA 754	Neighbour Solar Access Study – Sheet 5	B	CDA Architects	27/07/2017
DA 755	Neighbour Solar Access Study – Sheet 6	B	CDA Architects	27/07/2017
DA 756	Neighbour Solar Access Study – Sheet 7	B	CDA Architects	27/07/2017
DA 760	LEP Building Height Diagram – Sheet 1	B	CDA Architects	27/07/2017
DA 761	LEP Building Height Diagram – Sheet 2	B	CDA Architects	27/07/2017
1390.GD.01	Landscape Plan – Ground Floor	B	Greenland Design Architects	28/06/2017
1390.GD.02	Landscape Plan – Roof Terrace	B	Greenland Design Architects	28/06/2017
1390.GD.03	Landscape Details and Specification	B	Greenland Design Architects	28/06/2017
D00	Cover Sheet, Legend & Drawing Schedule	B	Australian Consulting Engineers	23/06/2017
D01	Basement 2 Stormwater Drainage Plan	C	Australian Consulting Engineers	23/06/2017
D02	Basement 1 Stormwater Drainage Plan	C	Australian Consulting Engineers	23/06/2017
D03	Ground Floor Stormwater Drainage Plan	C	Australian Consulting Engineers	22/06/2017
D03.5	Roof Stormwater Drainage Plan	A	Australian Consulting Engineers	23/06/2017
Document Name		Prepared by		Dated
Clause 4.6 Request		Urban Plan		10 August 2017
BASIX Certificate No. 736379M_03		Outsource Ideas P/l		2 August 2017
Stormwater Design Certificate		Australian Consulting Engineers		23 June 2017

2. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as agreed or assessed.

3. The appeal is upheld.

4. Development application No. DA-304/2016 for the construction of a 7 storey shop top housing development, containing 5 commercial units on the ground floor and 32 residential units (2 x 1 bedroom and 30 x 2 bedroom) above 2 basement levels containing 58 car parking spaces on Lots 7 and 8 DP 560608 known as 6-6A Charles Street, Canterbury is approved subject to the conditions contained in Annexure “A”.

……………………………………

Commissioner Jenny Smithson

60148.17 Smithson - Annexure A (C) (390 KB, pdf)

60148.17 Smithson - Plans (13.7 MB, pdf)