Land and Environment Court New South Wales Medium Neutral Citation: Botany Bay GP Pty Limited v Bayside Council [2016] NSWLEC 1581 Hearing dates: Conciliation conference on 30 August, 27 September, 2 October and 6 December 2016 Date of orders: 06 December 2016 Decision date: 06 December 2016 Jurisdiction: Class 1 Before: Morris 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: Botany Bay GP Pty Limited (Applicant) Bayside Council (Respondent) Representation: Solicitors: Ms J Hewitt HWL Ebsworth Lawyers (Applicant) Mr T O'Connor Houston Dearn O'Connor (Respondent) File Number(s): 159616/2016 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 Applicant is granted leave to amend the section 96(8) modification application to modify DA-10/486 filed directly with the Land and Environment Court as part of these proceedings to rely on the following amended plans annexed to this Agreement as "A": 1. General Arrangement Plan Drawing no DA-C1.11 Rev (6), prepared by Northrop Consulting Engineers, dated 25 October 2016. 2. Bulk Earthworks Cut and Fill Plan, Drawing no. DA-C2.11, Rev (6), prepared by Northrop Consulting Engineers and dated 4 November 2016. 3. Site works and Stormwater Management Plan, Sheet 1, Drawing No. DA-C3.01, Rev (8), prepared by Northrop Consulting Engineers and dated 4 November 2016. 4. Site works and Stormwater Management Plan, Sheet 3, Drawing No DA-C3.03, Rev (8), prepared by Northrop Consulting Engineers and dated 4 November 2016. 5. Stormwater Catchment Plan, Drawing DA C9.01, Rev (6), prepared by Northrop Consulting Engineers, dated 25 October 2016. 6. Turning Path Plan, Drawing No. DA C10.01 Rev (5) prepared by Northrop Consulting Engineers and dated 25 October 2016. 7. Landscape Plan, Drawing No. 16-026/L01, Rev J, prepared by Jocelyn Ramsay & Assoc Pty Ltd (Landscape Architects), and dated 7 November 2016. 8. Plan of Proposed Subdivision Lot 105 & Lot 111 DP 1204999 (Ref: 77436), Revision B, prepared by Rygate Surveyors, dated 25 October 2016 and received by Council on 10 November 2016. 1. The appeal is upheld. 2. Pursuant to section 96 (8) of the Environmental Planning and Assessment Act DA-10/486 ("Development Consent"), being a development consent approved by the Land and Environment Court for the staged subdivision of land within the Botany Industrial Park along Corish Circle and Denison Street and associated public roads and services at 16-20 Beauchamp Road, Banksmeadow) is modified to: -change the subdivision layout from 11 lots to 14 lots; -remove the stub road; -create three stages; -construct a car park on lot 26 and transfer that lot to council; -and amend Conditions including section 94 contributions; -provide for a planning agreement relating only to stage one; as shown by the modified Development Consent conditions (shown in bold, italicised and ruled through) as set out in annexure "B". 1. As a consequence of order 3, the Development Consent is now subject to the consolidated, modified conditions of the development consent set out in annexure "C" ……………. Sue Morris Commissioner 159616.16 Morris - Annexure A - Plans (updated 2_12_2016) (1.58 MB, pdf) 159616.2016 (C) Annexure B (458 KB, pdf) 159616.16 (C) Annexure C (382 KB, pdf) 159616.16 VPA (105 KB, pdf) 159616.2016 Annexure A to VPA (122 KB, pdf) Amendments 06 December 2016 - Uploaded Annexure C 07 December 2016 - Uploaded VPA attachments 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: 07 December 2016