Land and Environment Court New South Wales Medium Neutral Citation: Hae Sook Sung v City of Canada Bay Council [2017] NSWLEC 1365 Hearing dates: Conciliation conference on 5 June 2017 Date of orders: 11 July 2017 Decision date: 11 July 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPEAL under s97(1) against refusal of application for Boarding house – character and streetscape presentation – room sizes – amendments to proposal- 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: Hae Sook Sung (First Applicant) Yeoun Il Sung (Second Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: Mr V Conomos, Conomos Legal (Applicant) Mr S Patterson, Wiltshire Webb Staunton Beattie (Respondent) File Number(s): 2017/00035854 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. DA2016/0401. The application sought approval for the demolition of the existing dwelling and structures at 2 Swan Street, Strathfield and the construction of a multi- level boarding house. 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 Applicant is granted leave to rely upon the following plans and documentation in the proceedings: Reference/Dwg No Title/Description Prepared By Date/s Architectural Plans Project No. 160601 Drawing No. DA1.01 (Revision H) Site / Roof Plan ui 13/06/2017 Project No. 160601 Drawing No. DA3.01 (Revision P) Ground Level Floor Plan J 29/06/2017 Project No. 160601 Drawing No. DA3.02 (Revision L) Level 1 Floor Plan o 29/06/2017 Project No. 160601 Drawing No. DA3.03 (Revision L) Level 2 Floor Plan Jd 29/06/2017 Project No. 160601 Drawing No. DA4.01 (Revision E) Detail Room Layout Plans ud 13/06/2017 Project No. 160601 Drawing No. DA5.01 (Revision K) Sections So 13/06/2017 Project No. 160601 Drawing No. DA5.02 (Revision K) Sections Jd 13/06/2017 Project No. 160601 Drawing No. DA6.01 (Revision J) North & East Elevations Jo 13/06/2017 Project No. 160601 Drawing No. DA6.02 (Revision K) South & West Elevations Jo 13/06/2017 Project No. 160601 Drawing No. DA6.03 (Revision F) North & East Elevations At Building Line uo 29/06/2017 Surveys 8301DU Survey Plan s 23/06/2016 Landscape Plans LA DA-09-01 Landscape Plan C Sept 2016 Reports/Certificates/Statements/Plans Cert. No. 762484M_02 BASIX Certificate G 02/02/2017 2 Swan Avenue, Strathfield Waste Management Plan Yg 30/08/2016 10171a Operational Plan of Management (OPM) ) td Sept 2016 (Note: The OPM is required to be revised in accordance with the approved plans and conditions of consent prior to issue of a Construction Certificate 1. Pursuant to Section 97B of the Environmental Planning and Assessment Act 1979, the Applicant agrees to pay the Respondent's costs in the fixed amount of $3,000 within 28 days 2. The appeal is upheld. 3. Development Application No. DA2016/0401 for demolition of existing dwelling and structures and construction of a multi-level boarding house at 2 Swan Street, Strathfield is approved subject to the conditions in Annexure "A". ……………. D M Dickson Commissioner of the Court 35854.17 Dickson (C) (488 KB, pdf) Amendments 14 July 2017 - Correction to Parties name 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: 14 July 2017