Chuggers Pty Ltd v Waverley Council [2017] NSWLEC 1360

Land and Environment Court New South Wales

Medium Neutral Citation: Chuggers Pty Ltd v Waverley Council [2017] NSWLEC 1360 Hearing dates: Conciliation conference on 7 July 2017 Date of orders: 07 July 2017 Decision date: 07 July 2017 Jurisdiction: Class 1 Before: Dixon C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Chuggers Pty Ltd (ACN 113 507 145) (Applicant) Waverley Council (Respondent) Representation: Counsel: M Staunton (Applicant) J Smith (Respondent)

Solicitors K Stapleton, JDK Legal (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers File Number(s): 2017/27421 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. Leave is granted for the Applicant to amend its development application to seek development consent for use of the premises only and not for the carrying out of any physical works and to rely upon the following amended plans: 1. Architectural Plan known as Project No. 1531 and Sheet 1 (Revision E) prepared by Daniel Chapman, dated 10 May 2017 and received by Council on 12 May 2017; 2. Architectural Plan known as Project No. 1531 and Sheet 2 (Revision E) prepared by Daniel Chapman, dated 10 May 2017 and received by Council on 12 May 2017; 1. The Applicant is to pay the Respondent's costs thrown away as a consequence of the Applicant being granted leave to amend its development application in accordance with Order 1 and such costs are agreed in the amount of $6,500.00 and are to be paid by 20 July 2017. 2. The Appeal is upheld. 3. Development Application No. DA 152/2016 for change of use in the basement to allow for a bar/nightclub with live entertainment (Jam Gallery/Spring Street Social) for 8/191-195 Oxford Street, Bondi Junction be approved with the granting of development consent subject to the conditions set out in Annexure "A". ………………………. Commissioner Dixon 27241.17 Dixon (C) Annexure A (504 KB, pdf) 27241.17 Dixon - Architectural Plans Sheet 1 and 2 Revision E 10 May 2017 (37.7 KB, pdf) 27241.17 Dixon - POMfinal (1.06 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: 10 July 2017