Bando Development Pty Ltd v Cumberland Council [2017] NSWLEC 1677

Land and Environment Court New South Wales

Medium Neutral Citation: Bando Development Pty Ltd v Cumberland Council [2017] NSWLEC 1677 Hearing dates: Conciliation conference on 27 November 2017 Date of orders: 27 November 2017 Decision date: 27 November 2017 Jurisdiction: Class 1 Before: Gray C Decision: See (6) below Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Bando Development Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Solicitors: Mr G McKee, McKees Legal Solutions (Applicant) Mr A Seton, Marsdens Law Group (Respondent) File Number(s): 2017/78464 Publication restriction: No

Judgment 1. COMMISSIONER: This matter concerns an appeal by Bando Development Pty Ltd against the refusal by Cumberland Council of a development application for multi-dwelling housing at 2-8 Bando Road and 13 Tungarra Road, Girraween. Although the matter was listed for hearing on 27 November 2017, the hearing was adjourned to allow the matter to be listed for a further conciliation conference. 2. Subsequently, at the 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. The orders were made on 27 November 2017 and were amended on 29 November 2017 pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005. That amendment was to Annexure A such that the plan referred to as "DA-004 ESCP and Demolition Plan Revision A" in Condition 2 of the consent conditions is now amended and referred to as being dated "27 November 2017" and not "9 March 2017" 6. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979, as amended, are: 1. The applicant is granted leave to amend the development application and rely on the plans referred to in Condition 2 of Annexure "A". 2. The Appeal is upheld. 3. Development Application Number DA 2015/556 for the demolition of existing structures and construction of a multi-dwelling housing development comprising 27 dwellings and basement carparking at 2-8 Bando Road, and 13 Tungarra Road, GIRRAWEEN is approved subject to the conditions set out in Annexure "A". ………………………. Commissioner Gray Annexure A (C) (432 KB, pdf) (Architectural Plans) (4.98 MB, pdf) (Stormwater Plans) (1.98 MB, pdf) (Landscape Plans) (327 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: 30 November 2017