Auxco Mascot Pty Ltd v Bayside Council [2017] NSWLEC 1032

Land and Environment Court New South Wales

Medium Neutral Citation: Auxco Mascot Pty Ltd v Bayside Council [2017] NSWLEC 1032 Hearing dates: Conciliation conference on 31 January 2017 Date of orders: 31 January 2017 Decision date: 31 January 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPEAL under s97(AA) against the imposition of conditions: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Auxco Mascot Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitors: J Wauchope, Dentons, (Applicant) T Messenger, Bayside Council (Respondent) File Number(s): 2016/00311703 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(AA) of the Environmental Planning and Assessment Act 1979, against the imposition of conditions in relation to Development Application No. 2013/208/3. The original consent is for the construction of an 8 storey mixed use development comprising 84 dwellings and 235sqm of commercial space at 581-587 Gardeners Road Mascot. 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 are: 1. The appeal is upheld; 2. The Conditions imposed by Council on 14 December 2016 under the approval to section 96(1A) application 2013/280/3 to modify Development Consent No. 13/280 are amended in accordance with the Conditions annexed hereto and marked 'A'; 3. As a consequence of Order 2, Development Consent No 2013/280/3 is now subject to the consolidated, modified conditions of development consent annexed hereto and marked 'B'. 4. Each party to bear its own costs. ……………. D M Dickson Commissioner of the Court 311703.16 Dickson - Annexure A (126 KB, pdf) 311703.16 Dickson - Annexure B (562 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: 01 February 2017