Cornerstone Property Group Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1394

Land and Environment Court New South Wales

Medium Neutral Citation: Cornerstone Property Group Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 1394 Hearing dates: Conciliation conference on 31 August, 1 & 2 September 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Class 1 Before: Dixon 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: Cornerstone Property Group Pty Limited (Applicant) City of Sydney Council (Respondent) Representation: Counsel: Ms H Irish (Applicant) Mr C McEwan with Mr M Staunton (Respondent) Solicitors: Ms E Flemmng, EJ Fleming Legal (Applicant) Ms K Morrin, City of Sydney (Respondent) File Number(s): 2016/161600 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 under s34(3) of the Land and Environment Court Act 1979 are: (1) The Appeal is upheld. (2) Section 96(1A) application no. D/2014/1506/A lodged with the Respondent on 12 August 2015 to modify condition 69 of Development Consent No. D/2014/1506 for adaptive reuse of existing building comprising 45 apartments, lower level non-residential uses, a rooftop addition, subdivision and car parking at 117 & 119-127 Kippax Street, Surry Hills is determined by approving the modification as set out in Annexure A. (3) As a consequence of order (2), Development Consent No. D/2014/1506 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. Pursuant to Section 34(3)(a) of the Land and Environment Court Act 1979, the parties request the Commissioner to dispose of these proceedings in accordance with the terms of the decision set out in paragraph 2 above. Notation: The Court notes the agreement of the parties that: 1. the Respondent is to pay the Applicant the amount of $220,000.00 by way of partial refund of the section 94 contribution paid by the Applicant to the Respondent on 25 September 2015 within 30 days of execution of the deed of release referred to in (b) below. 2. the parties are to execute a deed of release in relation to the settlement referred to in (a) above, to reflect the fact that the payment by the Respondent to the Applicant of $220,000.00 referred to above is in full and final settlement of any amount due and owing to the Applicant as a result of the terms of the decision set out in paragraph 2 above. 3. each party is to pay their own costs of the proceedings. ……………………….. Commissioner Dixon 161600.16 Dixon (C) - Annexure A (125 KB, pdf) 161600.16 Dixon (C) - Annexure B (460 KB, 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: 08 September 2016