Land and Environment Court New South Wales Medium Neutral Citation: D&A Milray Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1612 Hearing dates: Conciliation conference on 11 September 2017 Date of orders: 31 October 2017 Decision date: 31 October 2017 Jurisdiction: Class 1 Before: Martin SC 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: D&A Milray Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: Mr H Kahagalle, Addisons (Applicant) Mr C Drury, Sparke Helmore (Respondent) File Number(s): 2017/ 135842 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 prepared by PBD Architects: Plan no. Drawn by Dated DA001 Demolition Plan Issue C PBD Architects 5/10/17 DA100 Basement 2 and 3 Plan Issue E PBD Architects 5/10/17 DA101 Lower Ground/Basement 1 Plan Issue F PBD Architects 20/10/17 DA102 Ground Floor Plan Issue F PBD Architects 20/10/17 DA103 Level 1 Plan Issue E PBD Architects 5/10/17 DA104 Level 2 Plan Issue E PBD Architects 5/10/17 DA105 Level 3 Plan Issue E PBD Architects 5/10/17 DA106 Level 4 Plan Issue E PBD Architects 5/10/17 DA107 Roof Plan Issue E PBD Architects 5/10/17 DA200 North & South Elevations Issue E PBD Architects 5/10/17 DA201 East & West Elevations Issue E PBD Architects 5/10/17 DA202 Section AA & BB Issue F PBD Architects 20/10/17 DA210 Façade detail section Issue B PBD Architects 5/10/17 DA400 Material Finishes Issue E PBD Architects 5/10/17 DA0580 Platinum Unit - Type 1 Issue C PBD Architects 5/10/17 DA0581 Platinum Unit - Type 2 Issue C PBD Architects 5/10/17 DA0582 Platinum Unit - Type 3 Issue C PBD Architects 5/10/17 SK170711_1.1 Site Sections at Trees 16-18 PBD Architects 100 Landscape Masterplan Issue H Site Image Landscape Architects 19/10/17 101 Landscape Plan - Ground Floor West Issue H Site Image Landscape Architects 19/10/17 102 Landscape Plan - Ground Floor East Issue H Site Image Landscape Architects 19/10/17 201 Planting Plan Ground Floor West Issue H Site Image Landscape Architects 19/10/17 202 Planting Plan Ground Floor East Issue H Site Image Landscape Architects 19/10/17 203 Planting Plan Lower Ground Floor Issue H Site Image Landscape Architects 19/10/17 301 Hardscape Plan - Ground Floor West Issue H Site Image Landscape Architects 19/10/17 302 Hardscape Plan - Ground Floor East Issue H Site Image Landscape Architects 19/10/17 303 Hardscape Plan - Lower Ground Floor Issue H Site Image Landscape Architects 19/10/17 501 Landscape Specification & Indicative Plant Schedule Issue H Site Image Landscape Architects 19/10/17 502 Landscape Details Issue H Site Image Landscape Architects 19/10/17 503 Landscape Details Issue H Site Image Landscape Architects 19/10/17 1. Development Application number 0044/17 for the development of 3, 3A and 5 Milray Street and 14A Nelson Road, Lindfield, being Lots 1 -3 in DP 226615 and Lot 13 in DP585497, comprising the demolition of existing buildings and associated structures and construction of a residential flat building containing 67 units and 3 levels of basement car parking, is approved subject to the conditions set out in Annexure "A". 2. The objection pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 to vary the height control in clause 4.3 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 is upheld. 3. The objection pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 to vary the floor space ratio control in clause 4.4 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 is upheld. 4. The Applicant is to pay the Respondent's costs thrown away by reason of the amended plans listed in paragraph 2(b) pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the amount of $11,000, to be paid within 21 days of the date of this agreement. ………………………. Senior Commissioner Martin Annexure A (C) (357 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: 02 November 2017