Land and Environment Court New South Wales Medium Neutral Citation: XZ International Holding Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1469 Hearing dates: Conciliation conference on 21 July and 11 August 2017 Date of orders: 29 August 2017 Decision date: 29 August 2017 Jurisdiction: Class 1 Before: Smithson C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: XZ International Holding Pty Ltd (Applicant) Canterbury-Bankstown Council(Respondent) Representation: Counsel: Mr R O'Gorman-Hughes (Applicant) Solicitors: Mr A Whealy, Mills Oakley (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2017/60148 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 to substitute the following plans for the plans and documents that are the subject of Development Application No. DA-304/2016: Plan No. Plan Name Revision No. Drawn by Dated DA 000 Cover sheet C CDA Architects 27/07/2017 DA 002 Site Plan C CDA Architects 27/07/2017 DA 100 Basement Level 02 Floor Plan C CDA Architects 27/07/2017 DA 101 Basement Level 01 Floor Plan C CDA Architects 27/07/2017 DA 102 Ground Floor Plan C CDA Architects 27/07/2017 DA 103 Level 01 Floor Plan C CDA Architects 27/07/2017 DA 104 Level 02 Floor Plan C CDA Architects 27/07/2017 DA 105 Level 03 Floor Plan C CDA Architects 27/07/2017 DA 106 Level 04 Floor Plan C CDA Architects 27/07/2017 DA 107 Level 05 Floor Plan C CDA Architects 27/07/2017 DA 108 Level 06 Floor Plan C CDA Architects 27/07/2017 DA 109 Roof Terrace Plan C CDA Architects 27/07/2017 DA 110 Roof Level Plan B CDA Architects 27/07/2017 DA 200 North Elevation C CDA Architects 27/07/2017 DA 201 East Elevation C CDA Architects 27/07/2017 DA 202 West Elevation C CDA Architects 27/07/2017 DA 203 Inner Elevations C CDA Architects 27/07/2017 DA 300 Section A C CDA Architects 27/07/2017 DA 500 Pre + Post Adaptable unit layout B CDA Architects 27/04/2017 DA 600 Shadow Diagrams C CDA Architects 27/07/2017 DA 700 GFA Calculation C CDA Architects 27/07/2017 DA 701 Solar Access Plan C CDA Architects 27/07/2017 DA 702 Ventilation Diagrams C CDA Architects 27/07/2017 DA 706 3D Views C CDA Architects 27/07/2017 DA 730 Finishes Schedule C CDA Architects 27/07/2017 DA 740 Sun View 9AM B CDA Architects 27/07/2017 DA 740-1 Sun View 9:30AM A CDA Architects 27/04/2017 DA 741 Sun View 10AM B CDA Architects 27/07/2017 DA 741-1 Sun View 10:30AM A CDA Architects 27/04/2017 DA 742 Sun View 11AM B CDA Architects 27/07/2017 DA 742-1 Sun View 11:30AM A CDA Architects 27/04/2017 DA 743 Sun View 12PM B CDA Architects 27/07/2017 DA 744 Sun View 1PM B CDA Architects 27/07/2017 DA 745 Sun View 2PM B CDA Architects 27/07/2017 DA 746 Sun View 3PM B CDA Architects 27/07/2017 DA 747 Solar Schedule B CDA Architects 27/07/2017 DA 750 Neighbour Solar Access Study – Sheet 1 B CDA Architects 27/07/2017 DA 751 Neighbour Solar Access Study – Sheet 2 B CDA Architects 27/07/2017 DA 752 Neighbour Solar Access Study – Sheet 3 B CDA Architects 27/07/2017 DA 753 Neighbour Solar Access Study – Sheet 4 B CDA Architects 27/07/2017 DA 754 Neighbour Solar Access Study – Sheet 5 B CDA Architects 27/07/2017 DA 755 Neighbour Solar Access Study – Sheet 6 B CDA Architects 27/07/2017 DA 756 Neighbour Solar Access Study – Sheet 7 B CDA Architects 27/07/2017 DA 760 LEP Building Height Diagram – Sheet 1 B CDA Architects 27/07/2017 DA 761 LEP Building Height Diagram – Sheet 2 B CDA Architects 27/07/2017 1390.GD.01 Landscape Plan – Ground Floor B Greenland Design Architects 28/06/2017 1390.GD.02 Landscape Plan – Roof Terrace B Greenland Design Architects 28/06/2017 1390.GD.03 Landscape Details and Specification B Greenland Design Architects 28/06/2017 D00 Cover Sheet, Legend & Drawing Schedule B Australian Consulting Engineers 23/06/2017 D01 Basement 2 Stormwater Drainage Plan C Australian Consulting Engineers 23/06/2017 D02 Basement 1 Stormwater Drainage Plan C Australian Consulting Engineers 23/06/2017 D03 Ground Floor Stormwater Drainage Plan C Australian Consulting Engineers 22/06/2017 D03.5 Roof Stormwater Drainage Plan A Australian Consulting Engineers 23/06/2017 Document Name Prepared by Dated Clause 4.6 Request Urban Plan 10 August 2017 BASIX Certificate No. 736379M_03 Outsource Ideas P/l 2 August 2017 Stormwater Design Certificate Australian Consulting Engineers 23 June 2017 1. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed. 2. The appeal is upheld. 3. Development application No. DA-304/2016 for the construction of a 7 storey shop top housing development, containing 5 commercial units on the ground floor and 32 residential units (2 x 1 bedroom and 30 x 2 bedroom) above 2 basement levels containing 58 car parking spaces on Lots 7 and 8 DP 560608 known as 6-6A Charles Street, Canterbury is approved subject to the conditions contained in Annexure "A". …………………………………… Commissioner Jenny Smithson 60148.17 Smithson - Annexure A (C) (390 KB, pdf) 60148.17 Smithson - Plans (13.7 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: 30 August 2017