Land and Environment Court New South Wales Medium Neutral Citation: Bina Pty Ltd v City of Parramatta Council [2017] NSWLEC 1635 Hearing dates: Conciliation conference on 10 November 2017 Date of orders: 10 November 2017 Decision date: 10 November 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: Bina Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Solicitor: Mr P Saab, Macquarie Lawyers (Applicant) Mr C Campbell, Sparke Helmore (Respondent) File Number(s): 2017/145227 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 Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Drawing No. Prepared By Dated Site Analysis, Drawing No. DA01, Issue D. Architex 21 September 2016 Site Details & Waste Management Details, Drawing No. DA14, Issue M. Architex 13 October 2017 Roof Level Plan, Drawing No. DA08, Issue L. Architex 12 October 2017 West, East and North Elevation, Drawing No. DA09, Issue L. Architex 12 October 2017 South Elevation, Drawing No. DA10, Issue L. Architex 12 October 2017 Basement 1 Floor Plan, Drawing No. DA02, Issue L. Architex 12 October 2017 Basement 2 Floor Plan, Drawing No. DA03, Issue L. Architex 12 October 2017 Ground Floor Plan, Drawing No.DA04, Issue L. Architex 12 October 2017 Level 1 and 2 Floor Plans, Drawing No.DA05, Issue L. Architex 12 October 2017 Level 3 and 4 Floor Plans, Drawing No.DA06, Issue L. Architex 12 October 2017 Level 5 Floor Plans, Drawing No.DA07, Issue L. Architex 12 October 2017 Sections AA, Drawing No.11, Issue D. Architex 12 October 2017 Typical Unit Layouts, Drawing No. DA12, Issue M. Architex 13 October 2017 Post Adaptable Layout, Drawing No. DA13, Issue M. Architex 13 October 2017 Ground Floor Stormwater Drainage Plan, Drawing No. D04, issue F. ACE 9 October 2017 Basement 2 Stormwater Drainage Plan and Details, Drawing No. D02, issue C. ACE 9 October 2017 Basement 1 Stormwater Drainage Plan and Details, Drawing No. D03, issue C. ACE 9 October 2017 Stormwater Drainage Sections and Details, Drawing No. D10, Revision F. ACE 9 October 2016 Landscape Plan, Drawing No. L-01, issue D. Landscape Architects 6 November 2017 Landscape Plan, Drawing No. L-02, issue D Landscape Architects 6 November 2017 Erosion and Sediment Control Plan and Details, Drawing No. D01, Revision A. ACE 17 December 2015 Swept Paths (4 pages) Bitzios 11 October 2017 Document(s) Prepared By Dated Structural Report Australian Consulting Engineers 8 July 2016 Geotechnical Report Geotechnique Pty Ltd 30 May 2016 Waste Management Plan Architex 18 November 2015 Finishes Schedule Architex Undated SEPP 65 Design report Architex 18 November 2015 BASIX Certificate No.687392M_3 BASIX 17 October 2017 BASIX Assessment Report No. ES20151116_00 ESD Synergy 17 October 2017 Traffic Report Bitzios 10 December 2015 Acoustic report Koikas Acoustics Pty Ltd 22 December 2015 Access Report PSE Access Consulting 15 December 2015 Arborist Report Redgum 11 December 2015 General Terms of Approval – Sydney Trains Transport Sydney Trains 22 December 2016 1. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Applicant's written request submitted pursuant to clause 4.3(2) of the Parramatta Local Environmental Plan 2011 in relation to the contravention of the development standard for height in clause 4.3(2) of Parramatta Local Environmental Plan 2011 is accepted, and the request to contravene the development standard in clause 4.3(2) is upheld 3. The appeal is upheld. 4. Development consent is granted to Development Application No. DA/21/2016 for the demolition, tree removal and the construction of a six storey residential flat building containing 26 units above basement parking on the land described in folio identifiers CP/SP58726, 1/SP58726, 2/SP58726, 3/SP58726, and 4/SP58726, with a street address of as 34 Station Street Dundas, subject to the conditions of consent annexed hereto and marked "A". ………………………. Commissioner Dixon 145227.17 Dixon - Annexure A (346 KB, pdf) 145227.17 Dixon - Attachment 1 (Drawing) to Conditions (3.12 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 November 2017