Bexley Village Pty Limited v Bayside Council [2018] NSWLEC 1174

Land and Environment Court New South Wales

Medium Neutral Citation: Bexley Village Pty Limited v Bayside Council [2018] NSWLEC 1174 Hearing dates: Conciliation conference on 15 and 29 March 2018 Date of orders: 06 April 2018 Decision date: 06 April 2018 Jurisdiction: Class 1 Before: Blakely AC 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: (Applicant) (Respondent) Representation: Solicitors: Mr Anthony Whealy, Mills Oakley Solicitors (Applicant) Mr John Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/300153 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 rely upon the amended plans and documents referred to in condition 2 of Annexure "A". 2. The clause 4.6 written request prepared by Dickson Rothschild (as amended) dated 3 April 2018 to vary the Height of Buildings control under clause 4.3 of Rockdale Local Environmental Plan 2011 is upheld. 3. The applicant is to pay the Council's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000 within 28 days. 4. The Appeal is upheld. 5. Development application no. DA/2017/373 for demolition of existing structures and construction of a mixed use development comprising of a ground level commercial tenancy, a rooftop terrace and five levels of residential units including 1, 2 and 3 bedroom units as well as basement car parking at 1 – 3 Harrow Road, Bexley (as amended) is approved subject to the conditions set out in Annexure "A" and on the basis of the Applicant's offer to enter into a voluntary planning agreement as set out in Annexure "B". ………………………. Acting Commissioner Blakely Annexure A (207 KB, pdf) Annexure B (1.00 MB, pdf) Annexure C (Cl4.6) (796 KB, pdf) Annexure D (Plans) (14.3 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: 06 April 2018