Land and Environment Court New South Wales Medium Neutral Citation: Benson McCormack Pty Ltd v Northern Beaches Council [2016] NSWLEC 1236 Hearing dates: Conciliation conference on 7, 26 April, 3 and 18 May 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Jurisdiction: Class 1 Before: Tuor 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: Benson McCormack Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Mr G McKee of McKees Legal Solutions (Applicant) Mr A Seton of Marsdens Law Group (Respondent) File Number(s): 2016/154594 (Formerly 11166 of 2015) 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, 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 are: 1. The Applicant is given leave to amend the development application by substituting the following plans as the plans relied upon for the purpose of the development application: Drawing Title Drawing No. Revision Prepared by Dated Basement Plan A-0101 D Benson McCormack May 2016 Ground- Floor Plan A-0102 D Benson McCormack May 2016 First Floor Plan A-0103 D Benson McCormack May 2016 Second Floor Plan A-0104 D Benson McCormack May 2016 Loft Plan A-0105 D Benson McCormack May 2016 Roof Plan A-0106 D Benson McCormack May 2016 Residential Ground Floor Plan A-0107 D Benson McCormack May 2016 Residential First Floor Plan A-0108 D Benson McCormack May 2016 Residential Second Floor Plan A-0109 D Benson McCormack May 2016 Residential Loft Level Plan A-0110 D Benson McCormack May 2016 Residential Roof Plan A-0111 D Benson McCormack May 2016 North Elevation A-0201 D Benson McCormack May 2016 South Elevation A-0202 D Benson McCormack May 2016 East Elevation A-0203 D Benson McCormack May 2016 West Elevation A-0204 D Benson McCormack May 2016 Section AA A-0220 D Benson McCormack May 2016 Section BB A-0221 D Benson McCormack May 2016 Section CC A-0222 C Benson McCormack May 2016 Section DD A-0223 C Benson McCormack May 2016 Section EE A-0224 C Benson McCormack May 2016 GFA Calculations A-1202 E Benson McCormack May 2016 1. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979, as agreed or as assessed. 2. The appeal is upheld. 3. Development Consent is granted to Development Application No. 236/2015 for the demolition of existing structures and the construction of a residential flat building with three storeys plus a loft, containing 13 units, approved and to be used (4 units) pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009, including a basement car park with nine car spaces and associated landscaping, on the land known as Lots 5 and 6 in Deposited Plan 9335, 323 – 325 Sydney Road, Balgowlah, subject to the conditions as contained in Annexure "A". ……………. Annelise Tuor Commissioner 154594.16 Tuor (C) (287 KB, pdf) 154594.16 Tuor_Applicant_s final amended plans (2.66 MB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2016