Land and Environment Court New South Wales Medium Neutral Citation: Vantage 229 Pty Limited v North Sydney Council [2017] NSWLEC 1316 Hearing dates: Conciliation Conference on 14 June 2017 Date of orders: 21 June 2017 Decision date: 21 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: MODIFICATION: modification of development consent to increase number of apartments and change in mix within the approved building envelope and increase number of car spaces conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Vantage 229 Pty Limited (Applicant) North Sydney Council (Respondent) Representation: Representation Ms J Reid (Applicant) Mr A Hutchings (Respondent) File Number(s): 2017/54042 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Modification Application No 487/15/2 for the modification of Deferred Commencement Consent No. DA487/15 to increase number of apartments and change in apartment mix within the approved building envelope and increase number of car spaces for a mixed use building at 229 and 231 Miller Street North Sydney. 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 granted leave to rely on the following amended plans: 1. DA09 – Ground Floor Plan prepared by PA Studio, Revision B dated 22 May 2017 2. DA27 – Level 18 prepared by PA Studio, Revision B dated 22 May 2017 3. DA28 – Roof Level prepared by PA Studio, Revision B dated 22 May 2017 4. DA31 – North and South Elevations prepared by PA Studio, Revision B dated 22 May 2017 5. DA32 – East and West Elevations prepared by PA Studio, Revision B dated 22 May 2017 6. DA33 – North Elevation prepared by PA Studio, Revision B dated 22 May 2017 7. DA34 – East Elevation prepared by PA Studio, Revision B dated 22 May 2017 8. DA35 – South Elevation prepared by PA Studio, Revision B dated 22 May 2017 9. DA36 – West Elevation prepared by PA Studio, Revision B dated 22 May 2017 10. DA37 – Section S1 Looking East prepared by PA Studio, Revision B dated 22 May 2017 11. DA38 – Section S2 Looking North prepared by PA Studio, Revision B dated 22 May 2017 12. DA40 – Schedule of Materials and Finishes prepared by PA Studio, Revision B dated 22 May 2017 13. DA06 – Basement 1 prepared by PA Studio, Revision B dated 22 May 2017 1. The Appeal is upheld. 2. Modification Application No 487/15/2 for modification of Deferred Commencement Consent No. DA487/15 to increase number of apartments and change in mix within the approved building envelope and increase number of car spaces is approved subject to the conditions set out in Annexure "A" to this agreement. ……………. G Brown Commissioner of the Court 54042.17 (C) (666 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: 21 June 2017