Bay Street Botany Pty Ltd v Bayside Council [2016] NSWLEC 1522

Land and Environment Court New South Wales

Medium Neutral Citation: Bay Street Botany Pty Ltd v Bayside Council [2016] NSWLEC 1522 Hearing dates: Conciliation conference on 15 August, 9, 14 and 23 September 2016 Date of orders: 08 November 2016 Decision date: 08 November 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: alterations and additions to a residential flat building; 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: Bay Street Botany Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitors: Ms K Gerathy, HWL Ebsworth Lawyers (Applicant) Mr T O'Connor, Houston Dearn O'Connor (Respondent) File Number(s): 2016/159306 Publication restriction: No

Judgment 1. COMMISSIONER; This is an appeal against the refusal of Development Application No. 2016/24/1 for alterations and additions to an existing residential flat building at 72-86 Bay Street Botany. 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 to leave to amend its Application Class 1 in accordance with Annexure "A". 2. The Appeal is upheld. 3. Leave is granted to rely on the amended plans referred to in condition 1 of Annexure "B". 4. The applicant is to pay Council's costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the amount of $3,000.00 within 21 days. 5. Approval is granted to Development Application No. 2016/24/1 for alterations and additions to the existing residential flat building including a modified basement alignment, conversion of the communal room to a two bedroom unit, removal of the pool at ground level, erection of a pergola structure to be used as a communal room, conversion of 2 x two bedroom units into a 2 x three bedroom units on Levels 4 and 5, five additional units on Level 7 (4 x two bedroom, 1 x one bedroom unit), and associated landscaping at 72-86 Bay Street, Botany subject to the conditions at Annexure "B". ……………. Commissioner Brown 159306.16 Brown - Annexure A (166 KB, pdf) 159306.16 Brown - Annexure B (174 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 November 2016