Land and Environment Court New South Wales Medium Neutral Citation: Sivabalakan v Cumberland Council [2016] NSWLEC 1612 Hearing dates: Conciliation conference on 30 November 2016 Date of orders: 19 December 2016 Decision date: 19 December 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION; demolition of all improvements and construction of 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: Sharmila Sivabalakan (Applicant) Cumberland Council (Respondent) Representation: Counsel: Mr G McKee, solicitor (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Law Group (Respondent) File Number(s): 2016/00257346 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No 2016/180/1 for demolition of all improvements and construction of a residential flat building at 28 Patricia Street Mays Hill. 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 make, 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 given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Title Drawing No. Date Revision Prepared by Site Analysis A001 November 2016 D Gus Fares Architects Site Information/ 3D Views/ Adaptable Housing Details A002 November 2016 D Gus Fares Architects Basement Plan A101 November 2016 D Gus Fares Architects Ground Floor/Typical Unit Layout A102 November 2016 D Gus Fares Architects 1st Floor/ 2nd & 3rd Floor A103 November 2016 D Gus Fares Architects 4th Floor A104 November 2016 D Gus Fares Architects Elevations (North-South) A201 November 2016 D Gus Fares Architects /Schedule of Finishes Elevations (West-East)/Streetscape Analysis A202 November 2016 D Gus Fares Architects Sections/ Driveway Sections A301 November 2016 D Gus Fares Architects Solar Access Study/ Cross Ventilation Study A401 November 2016 D Gus Fares Architects Shadow Diagrams/ Wider Local Context (Current) A402 November 2016 D Gus Fares Architects Shadow Diagrams/ Wider Local Context (Potential) A403 November 2016 D Gus Fares Architects Landscape Plan 2016.0501DA1-1 1 November 2016 B TSG Landscape Architects Landscape Plan 2016.0501DA1-2 1 November 2016 B TSG Landscape Architects Cover Sheet, Legend & Drawing Schedule D00 31 October 2016 B Australian Consulting Engineers Basement Stormwater Drainage Plan D01 31 October 2016 C Australian Consulting Engineers Ground Floor Stormwater Drainage Plan D02 31 October 2016 C Australian Consulting Engineers Site Stormwater Drainage Details 1 D03 31 October 2016 C Australian Consulting Engineers Site Stormwater Drainage Details 2 D04 31 October 2016 C Australian Consulting Engineers Erosion and Sediment Control Plan & Details D05 31 October 2016 C Australian Consulting Engineers Document Title Prepared by Dated BASIX Certificate No. 721562M_02 1 December 2016 Arboricultural Impact Assessment Report Horticultural Management Services 5 December 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 $5,000.00 within 28 days of the date of these orders. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. 2016/180/1 for the demolition of existing structures and construction of a part 5, part 4 storey residential flat building comprising 13 units over basement parking accommodating 13 car parking spaces, on the land at 28 Patricia Street, Mays Hill, subject to the conditions of consent annexed hereto and marked "A". ……………. G T Brown Commissioner 257346.16 (C) gtb (548 KB, pdf) 257346.16 - Final approved plans (6.69 MB, 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: 20 December 2016