Zam Zam Developments Pty Ltd v Cumberland Council

[2018] NSWLEC 1468

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zam Zam Developments Pty Ltd v Cumberland Council [2018] NSWLEC 1468
Hearing dates:	Conciliation conference on 31 August 2018
Date of orders:	31 August 2018
Decision date:	31 August 2018
Jurisdiction:	Class 1
Before:	Chilcott 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 State Environmental Planning Policy (Affordable Rental Housing) 2009
Category:	Principal judgment
Parties:	Zam Zam Developments Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: A Gough, Storey & Gough (Applicant) S Shneider, Houston Dearn O’Connor (Respondent)
File Number(s):	2017/227408
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 an amended development application incorporating the following plans and documents:

Plan Number	Prepared By	Revision No.	Dated
DRWG No. A1101	Ghazi Al Ali	D	26/03/2018
DRWG No. A1200	Ghazi Al Ali	D	20/03/2018
DRWG No. A1201	Ghazi Al Ali	D	20/03/2018
DRWG No. A1202	Ghazi Al Ali	E	10/04/2018
DRWG No. A1203	Ghazi Al Ali	E	10/04/2018
DRWG No. A1204	Ghazi Al Ali	E	10/04/2018
DRWG No. A1205	Ghazi Al Ali	E	10/04/2018
DRWG No. A1206	Ghazi Al Ali	E	10/04/2018
DRWG No. A1207	Ghazi Al Ali	E	10/04/2018
DRWG No. A1209	Ghazi Al Ali	E	10/04/2018
DRWG No. A1210	Ghazi Al Ali	A	20/03/2018
DRWG No. A1300	Ghazi Al Ali	E	10/04/2018
DRWG No. A1301	Ghazi Al Ali	E	10/04/2018
DRWG No. A1302	Ghazi Al Ali	E	10/04/2018
DRWG No. A1400	Ghazi Al Ali	E	10/04/2018
DRWG No. A1401	Ghazi Al Ali	E	10/04/2018
DRWG No. A1402	Ghazi Al Ali	D	20/03/2018
DRWG No. A1403	Ghazi Al Ali	C	10/04/2018
DRWG No. A1404	Ghazi Al Ali	B	10/04/2018
DRWG No. A2200	Ghazi Al Ali	C	10/04/2018
DRWG No. A2201	Ghazi Al Ali	D	10/04/2018
DRWG No. A2202	Ghazi Al Ali	D	10/04/2018
DRWG No. A3001	Ghazi Al Ali	P	31/05/2018
DRWG No. L01A Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali	Site Design Studios	A	23/02/2018
DRWG No. L02A Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali	Site Design Studios	A	23/02/2018
DRWG No. L03A Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali	Site Design Studios	A	23/02/2018
DRWG No. L04A	Site Design Studios	A	23/02/2018
DRWG No. SW02	SGC	B	18/04/2018
DRWG No. SW03	SGC	B	18/04/2018
DRWG No. SW04	SGC	B	18/04/2018
DRWG No. SW05	SGC	B	18/04/2018
DRWG No. SW06	SGC	B	18/04/2018
DRWG No. SW07	SGC	B	18/04/2018
DRWG No. SW08	SGC	B	18/04/2018
DRWG No. SW09	SGC	B	18/04/2018
DRWG No. SW10	SGC	B	18/04/2018
DRWG No. SW11	SGC	B	18/04/2018
Geotechnical Investigation Report	Alliance Geotechnical	-	16 March 2017
Noise Assessment	Acoustic Consulting Engineers	03	17 March 2017
Arboricultural Impact Assessment Report	Jacksons Nature Works	-	10 March 2017
Flood Study Report Issue B	SGC	C	28/11/2017
BASIX Certificate Number 716050M_04	Greenworld Architectural Drafting	-	20 March 2018
Amended clause 4.6 (Height of Building)	Morphology Design Associates	-	-

2. The applicant to pay the Respondent’s costs thrown away pursuant to s.8.15 (3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The Applicant’s clause 4.6 written request to vary the height control pursuant to clause 4.3 of the Parramatta LEP 2011 is upheld.

4. The appeal is upheld.

5. Development application Number 231/2017 for the for the demolition at 33-35 William Street Granville NSW 2142 (“the land”) of existing structures and for construction on the land of a six (6) storey residential flat building in reliance on State Environmental Planning Policy (Affordable Rental Housing) 2009 with two (2) basement levels including basement parking, and containing fifty (50) units comprising eleven (11) one-bedroom units, thirty four (34) two bed units and five (5) three bed units is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (700 KB, pdf)