Zinnia Group Pty Ltd v Cumberland Council

[2018] NSWLEC 1049

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zinnia Group Pty Ltd v Cumberland Council [2018] NSWLEC 1049
Hearing dates:	Conciliation conference on 31 January and 5 February 2018
Date of orders:	09 February 2018
Decision date:	09 February 2018
Jurisdiction:	Class 1
Before:	Dickson 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:	Cumberland Council (Respondent)
Representation:	Solicitor: Christopher Shaw, Shaw Reynolds Lawyers (Applicant) Christopher Gough, Storey & Gough Lawyers (Respondent)
File Number(s):	2017/257522
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. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Drawing No.	Prepared By	Dated
Site Plan – Drawing No A1a	Nigel Merryweather - Architect	2.11.17
Ground Floor Plan – Drawing No A2d	Nigel Merryweather - Architect	01.02.18
First Floor Plan – Drawing No A3a	Nigel Merryweather - Architect	31.5.17
Second Floor Plan – Drawing No A4c	Nigel Merryweather - Architect	30.1.18
Roof Plan – Drawing No A5a	Nigel Merryweather - Architect	26.10.17
Elevations – Drawing No A6a	Nigel Merryweather - Architect	26.10.17
Sections 1 – Drawing A7d	Nigel Merryweather - Architect	02.02.18
Sections 2 – Drawing A8a	Nigel Merryweather - Architect	26.10.17
Fences – Drawing A9	Nigel Merryweather - Architect	31.5.17
Areas – Drawing AR1a	Nigel Merryweather - Architect	31.5.17
Play Areas – Drawing AR2	Nigel Merryweather - Architect	31.5.17
Signage – Drawing no SIGa	Nigel Merryweather - Architect	26.10.17
Concept Drainage Plan and Details – Drawing SW1 Rev C	E2 Civil and Structural Design	01.02.18
Concept Roof Plan & Details - Drawing SW2 Rev A	E2 Civil and Structural Design	15.10.17
Landscape Concept Plan Drawing 17-1282/1 Rev A	Captivate Landscape design	15.11.17
Document(s)	Dated
Waste Management Plan	May 2017
Acoustic Impact Assessment	Rodney Stevens Acoustics	8 Nov 2017
Plan of Management	February 2018

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA290/2017 for the demolition of existing structures and the construction of a purpose built, multi-level child care centre with ancillary signage, on land described in lot 40 and 41 section 1, DP 5121, with a street address of 331 Blaxcell Street, South Granville, subject to the conditions of consent annexed hereto and marked “A”.

4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs in the amount of $4,000, inclusive of GST, to be paid within 28 days of this section 34 agreement.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (234 KB, pdf)

Decision last updated: 15 February 2018