Fox Johnston Pty Ltd v Bayside Council [2016] NSWLEC 1510

Land and Environment Court New South Wales

Medium Neutral Citation: Fox Johnston Pty Ltd v Bayside Council [2016] NSWLEC 1510 Hearing dates: Conciliation conference on 19 September, 10 October 2016 Date of orders: 31 October 2016 Decision date: 31 October 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION; demolition of existing improvements and construction of a mixed use building containing 16 boarding rooms, ground floor retail unit and off street parking; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Fox Johnston Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: Mr G Green, solicitor (Applicant) Mr J Cole, solicitor (Respondent)

Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/00200119 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application DA-2016/279 for the demolition of existing improvements and construction of a mixed use building containing 16 boarding rooms, ground floor retail unit and off street parking at 290 Forest Road Bexley. 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 applicant is granted leave to amend development application no DA 2016/279 to rely upon the amended plans referred to in Condition B2 of Annexure "A". 2. The applicant shall pay the respondent's costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $5,000 within 21 days. 3. The appeal is upheld. 4. Development application no DA 2016/279 for demolition of the existing buildings and construction of a mixed use development comprising 1 retail shop and a new affordable rental housing development with access to basement parking at 290-292 Forest Road, Bexley is approved subject to the conditions in Annexure "A" hereto. ……………. G T Brown Commissioner 200119.16 - Annexure A (143 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: 03 November 2016