Land and Environment Court New South Wales Medium Neutral Citation: JB Hillsdale Pty Ltd v City of Botany Bay Council [2016] NSWLEC 1600 Hearing dates: Conciliation conference on 2 September, 4 October, 9 December 2016 Date of orders: 13 December 2016 Decision date: 13 December 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See (4) below Catchwords: APPEAL: Development application – residential flat buildings; 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: JB Hillsdale Pty Ltd (Applicant) City of Botany Bay Council (Respondent) Representation: Counsel: Peta Hudson (Applicant) John Cole (Respondent) Solicitors: Marsdens Law Group (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/00163500 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 make, 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 given leave to amend the development application by substituting the following plans and documents as the plans relied upon for the purpose of the development application: Drawing No. Author Date Basement 3 Plan, Project No 0915, Drawing No. A02_A, Issue 03 Krikis Tayler Architects 25 November 2016 Basement 2 Plan, Project No 0915, Drawing No. A02, Issue 08 Krikis Tayler Architects 25 November 2016 Basement 1 Plan, Project No 0915, Drawing No. A03, Issue 09 Krikis Tayler Architects 25 November 2016 Lower Ground Plan, Project No 0915, Drawing No. A04, Issue 09 Krikis Tayler Architects 25 November 2016 Ground Level Plan, Project No 0915, Drawing No. A05, Issue 12 Krikis Tayler Architects 25 November 2016 Level 1-2 Plan, Project No 0915, Drawing No. A06, Issue 08 Krikis Tayler Architects 25 November 2016 Level 3 Plan, Project No 0915, Drawing No. A06_A, Issue 02 Krikis Tayler Architects 25 November 2016 Level 4 Plan, Project No 0915, Drawing No. A09, Issue 06 Krikis Tayler Architects 25 November 2016 Level 5 Plan, Project No 0915, Drawing No. A10, Issue 06 Krikis Tayler Architects 25 November 2016 Roof Plan, Project No 0915, Drawing No. A11, Issue 06 Krikis Tayler Architects 25 November 2016 Elevations 1, Project No 0915, Drawing No. A20, Issue 07 Krikis Tayler Architects 25 November 2016 Elevations 2, Project No 0915, Drawing No. A21, Issue 06 Krikis Tayler Architects 25 November 2016 Elevations 3, Project No 0915, Drawing No. A22, Issue 06 Krikis Tayler Architects 25 November 2016 Section A-A, Project No 0915, Drawing No. A30, Issue 06 Krikis Tayler Architects 25 November 2016 Section B-B, Project No 0915, Drawing No. A31, Issue 04 Krikis Tayler Architects 25 November 2016 Apartment Schedule, Project No 0915 Krikis Tayler Architects 24 November 2016 Landscape Plan, Job No. 161114, Dwg No. LP.01/C, Sheet 1 of 1. Narelle Sonter December 2016 Material Board, Project No 0915, Drawing No. A60, Issue 06, Krikis Tayler Architects 25 November 2016 NaTHERS Thermal Performance Specifications (BASIX Thermal Comfort), Certificate Number 0001038340 Robert Mallindine 30 November 2016 BASIX Certificate No. 595696M_03 AGA Consultants 30 November 2016 Access Report Accessibility Solutions (NSW) Pty Ltd 29 November 2016 Flood Advice for 278 Bunnerong Road, Hillsdale Cardno 23 November 2016 WC297-02F01- WS Memo Windtech Consultants Pty Ltd 28 November 2016 Arboricultural Impact Assessment Tree Wise Men December 2016 Site Audit Report No. 0503-0705 JBS & G Dated 22 July 2013 Received 22 December 2014 BCA Compliance Capability Report Vic Lilli & Partners Consulting 28 November 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 Act 1979 in the amount of $50,000 within 28 days of the date of these orders. 2. The appeal is upheld. 3. Development Consent is granted to Development Application DA-14/318 for the construction of two residential flat buildings containing 84 units comprising; 28 x 1 bedroom units, 50 x 2 bedroom units and 6 x 3 bedroom units with basement car parking levels accommodating 157 car spaces on the land at 278 Bunnerong Road, Hillsdale, subject to the conditions as contained in Annexure "A". ……………. Susan Dixon Commissioner 163500.16 - Annexure A - Conditions of Consent (270 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: 16 December 2016