Land and Environment Court New South Wales Medium Neutral Citation: Optimal Enterprises Pty Ltd v Strathfield Municipal Council [2016] NSWLEC 1453 Hearing dates: Conciliation conference on 19 July, 15 August, 22 September 2016 Date of orders: 23 September 2016 Decision date: 23 September 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a mixed use development: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Optimal Enterprises Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: Mr V Conomos, solicitor (Applicant) Mr A Hutchings, solicitor (Respondent) Solicitors: Conomos Legal (Applicant) Matthews Folbigg (Respondent) File Number(s): 2016/00159236 Publication restriction: No Judgment 1. COMMISSIONER: This an appeal against the refusal of Development Application No 2016/014 for the demolition of existing structures and construction of a mixed use development at 25-29 Smallwood Avenue, Homebush. 2. 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". 3. 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. 4. 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. 5. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The terms of the decision are as follows: 1. The Appeal is upheld. 2. Development Application No 2016/014 for demolition of existing structures and construction of a seven (7) storey mixed use development comprising one (1) x ground floor commercial/retail tenancy and forty-three (43) residential units comprising five (5) x 1 bedroom and thirty-eight (38) x 2 bedroom units above two (2) levels of basement car parking, is approved subject to the conditions set out in Annexure "A" to this agreement. 1. The Applicant is granted leave to rely on the following amended plans: 1. Demolition Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1100, Issue C dated 22 September 2016 2. Basement 02 Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1200, Issue B dated 26 July 2016 3. Basement 01 Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1201, Issue B dated 26 July 2016 4. Ground Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1202, Issue C dated 18 August 2016 5. Level 01 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. 1203 Issue C dated 18 August 2016 6. Level 02 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1204, Issue C dated 18 August 2016 7. Level 03 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1205, Issue C dated 18 August 2016 8. Level 04 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1206, Issue C dated 18 August 2016 9. Level 05 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1207, Issue C dated 18 August 2016 10. Level 06 Floor Plan prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1208, Issue C dated 18 August 2016 11. Roof Plan prepared by Ghazi Al Ali Architect, Drawing No. A1209, Issue C dated 18 August 2016 12. Eastern Elevation prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1500, Issue C dated 18 August 2016 13. Northern Elevation prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1501, Issue C dated 18 August 2016 14. Western Elevation prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1502, Issue C dated 18 August 2016 15. Southern Elevation prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1503, Issue C dated 18 August 2016 16. Material Schedule Eastern Façade prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1600, Issue B dated 23 August 2016 17. Material Schedule Western Façade prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1601, Issue B dated 23 August 2016 18. Material Schedule South and North Façades prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1602, Issue B dated 23 August 2016 19. Section A prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1700, Issue C dated 18 August 2016 20. Section B prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1701, Issue C dated 18 August 2016 21. Section C prepared by Ghazi Al Ali Architect, Job No. 76-15 Drawing No. A1702, Issue C dated 18 August 2016 22. Landscape Plan Sheet No. B448_DA_001 Rev B Project No. B448 prepared by CPS dated 25 August 2016 23. Stormwater Concept Design Basement 2 Plan Project No. 2015/0421 SW 02 Rev A prepared by SGC Consulting dated 1 February 2016 24. Stormwater Concept Design Basement 1 Plan Project No. 2015/0421 SW 03 Rev A prepared by SGC Consulting dated 1 February 2016 25. Stormwater Concept Design Ground Floor Plan Project No. 2015/0421 SW 04 Rev A prepared by SGC Consulting dated 1 February 2016 26. Erosion and Sediment Control Plan Project No. 2015/0421 SW 05 Rev A prepared by SGC Consulting dated 1 February 2016 27. Stormwater Concept Design Details Project No. 2015/0421 SW 06 Rev A prepared by SGC Consulting dated 1 February 2016 28. Acoustic report prepared by Acoustic Consulting Engineers Report No. 150690-01L-DD Rev 01 dated 3 February 2016 29. BASIX Certificate No. 700522M_02 dated 30 August 2016 30. Geotechnical Investigation Report ID G15112STR-R01F prepared by Geo-Environmental dated 23 June 2016 31. Stage 1 Preliminary Site Investigation G15112STR-R02F prepared by Geo-Environmental dated 21 June 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 1979, in the sum of $3,000.00 to be paid within 28 days. ……………. G T Brown Commissioner 159236.16 (C) gtb (271 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: 30 September 2016