HSH Group Pty Ltd v Ku-ring-gai Municipal Council [2017] NSWLEC 1263

Land and Environment Court New South Wales

Medium Neutral Citation: HSH Group Pty Ltd v Ku-ring-gai Municipal Council [2017] NSWLEC 1263 Hearing dates: Conciliation Conference 24 April 2017 Date of orders: 26 May 2017 Decision date: 26 May 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: appeal against deemed refusal of residential flat building - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: HSH Group Pty Ltd (Applicant) Ku-ring-gai Municipal Council (Respondent) Representation: Ms E Flemming, Swaab Attorneys (Applicant) Mr J Hones, Hones Lawyers Pty Ltd (Respondent) File Number(s): 2016/ 376956 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of Development Application No. DA/468/16 which sought consent for demolition of existing structures and construction of a 30 unit residential flat building over basement carparking on land at 2-6 Pearson Avenue Gordon. 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 appeal is upheld. 2. The Applicant is granted leave to rely on the amended plans referred to in Condition 1 of the conditions of consent contained in Annexure A. 3. The Applicant's cl.4.6 variation request is upheld. 4. The Applicant is to pay the Respondent's costs under s.97B of the Environmental Planning and Assessment Act 1979, agreed in the sum of $5500.00 to be paid prior to the execution of this Agreement. 5. Development Application No. DA0468/16 is approved for the consolidation of three (3) allotments (Lots B and D in DP316799 and Lot B in DP323231), the demolition of the existing dwelling houses and associated site structures and the construction of a residential flat building consisting of thirty (30) units with basement car parking, including ancillary storm water and public domain landscaping works, and tree removal within and adjoining the proposed public roads, on land known as 2-6 Pearson Avenue, Gordon, subject to the conditions at Annexure A. ……………. D M Dickson Commissioner of the Court 376956.16 Dickson - Amended Condition (365 KB, pdf) 376956.16 Dickson-Plans (0 Byte, pdf)