Land and Environment Court New South Wales Medium Neutral Citation: Benmill Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 1385 Hearing dates: Conciliation conference on 18 July 2017 Date of orders: 20 July 2017 Decision date: 20 July 2017 Jurisdiction: Class 1 Before: Smithson 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: Benmill Pty Ltd (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: Mr T March (Applicant) Ms F Berglund (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Sydney City Council (Respondent) File Number(s): 2016/359097 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. The appeal is upheld. 2. The applicant is granted leave to rely on the following amended plans, as referred to in Condition 1 of Annexure A: Drawing Number Drawing Name Date DA01 Issue 6 Cover Page and Context 13 July 2017 DA02 Issue 6 Site Analysis 13 July 2017 DA08 Issue 6 Ground Floor Plan 13 July 2017 DA09 Issue 6 Level 1 Plan 13 July 2017 DA10 Issue 7 Level 2 Plan 18 July 2017 DA11 Issue 7 Level 3 Plan 18 July 2017 DA12 Issue 6 Roof Plan 13 July 2017 DA13 Issue 7 Elevations North South 18 July 2017 DA14 Issue 7 Elevations East West 18 July 2017 DA15 Issue 6 Sections 13 July 2017 DA16 Issue 6 SEPP 65 Compliance Plans 13 July 2017 DA17 Issue 6 GFA Calculation 13 July 2017 DA18 Issue 6 Setbacks and Separation 13 July 2017 DA19 Issue 7 Materials and Structure 18 July 2017 DA24 Issue 6 Shade Structure Plan 13 July 2017 DA25 Issue 7 Ventilation Level 3 18 July 2017 DAX1 Issue 7 Materials Board 18 July 2017 1. The amended Clause 4.6 exception for a variation to the maximum height of buildings standard, 10 June 2017, is upheld. 2. The amended Clause 4.6 exception for a variation to the maximum floor space ratio standard, dated 13 July 2017, is upheld. 3. The applicant is to pay the respondent's costs that are thrown away as a result of amending the development application as agreed or assessed pursuant to section 97B of the Environment and Planning Assessment Act 1979. 4. Application D/2015/1237 for a two-storey addition and adaptive use of a warehouse at 276-282 Devonshire St, Surry Hills to retain the existing commercial uses on the ground and first floors and accommodate 13 apartments with a communal roof terrace above is approved subject to the conditions annexed and marked "A". ………………………. Commissioner Smithson 359097.16 Smithson (C) (281 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: 20 July 2017