New Street No 1 Pty Ltd v Waverley Council [2018] NSWLEC 1208

Land and Environment Court New South Wales

Medium Neutral Citation: New Street No 1 Pty Ltd v Waverley Council [2018] NSWLEC 1208 Hearing dates: Conciliation conference on 14 February, 8 and 12 March and 12 April 2018 Date of orders: 01 May 2018 Decision date: 01 May 2018 Jurisdiction: Class 1 Before: Dixon 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: New Street No 1 Pty Ltd (First Applicant) New Street No 2 Pty Ltd (Second Applicant) Waverley Council (Respondent) Representation: Solicitors: T Neal, Colin Biggers & Paisley (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/273413 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 the Applicants to amend the section 96(2) modification application to modify development consent numbered DA264/2015 to rely on the following documents: 1. Architectural plans prepared by Aleksander Design Group (Annexure A): * CC03 Revision 1 Basement 02 Plan dated 28 February 2018; * CC04 Revision H Basement 01 Plan dated 28 February 2018; * CC05 Revision G Ground Floor Plan dated 28 February 2018; * CC06 Revision F Level 01 Floor Plan dated 28 February 2018; * CC07 Revision F Level 02 Floor Plan dated 28 February 2018; * CC08 Revision F Level 03 Floor Plan dated 28 February 2018; * CC09 Revision E Roof Level Plan dated 28 February 2018; * CC10 Revision B Section A-A dated 28 February 2018; * CC11 Revision C North Elevation dated 28 February 2018; * CC12 Revision B South Elevation dated 28 February 2018; * CC13 Revision B East Elevation dated 28 February 2018; * CC14 Revision B West Elevation dated 28 February 2018. 1. Statement of Environmental Effects prepared by ABC Planning and dated March 2018. 2. Plan of Management for Retail Tenancies G1, G2 and G3 as prepared by Design Collaborative dated March 2018. 3. Acoustic Report prepared by Acoustic Logic dated 2 March 2018. 4. Landscape plan prepared by Melissa Wilson dated 1 March 2018. 5. Services Report prepared by Floth Engineering dated 2 March 2018. 1. The Applicants agree to pay the Council's costs thrown away as a result of the amendments to the plans the subject of the appeal in the sum of $12,500.00 to be paid within 28 days from the date of these Orders. 2. The appeal is upheld. 3. Pursuant to section 96(2) of the Environmental Planning and Assessment Act 1979 approval is granted to modify development application numbered DA264/2015 being development consent for the demolition of existing building, construction of a mixed use building consisting of 4 levels above Macpherson Street and basement car parking and stratum subdivision on land at 113 Macpherson Street, Bronte to permit the following: 1. Modification of 4 approved retail tenancies on the ground floor to 3 with each tenancy to be used as a restaurant with operating hours of 7am to 10pm daily; 2. Removal of the approved swimming pool from the ground floor level; 3. Minor shift south of the approved gym in the south western corner of the ground floor level; 4. Provision of bathroom facilities for 3 retail tenancies on the western side of the ground floor; 5. Acoustic screening along the western side of the ground floor walkway; 6. Addition of a storeroom and services area in the basement level; 7. Relocation of the garbage room within the basement level; 8. Addition of services on all levels of the building; 9. Removal of lift and rotation of fire stairs in north eastern corner of building; 10. Adjustment of the angle of the approved louvres along the eastern and western elevations of levels 1- 3; 11. Acoustic screening on the western elevations of levels 1-3 to screen bathrooms; 12. Services to the roof level, including screening of the services, as shown by the amended plans as set out in Annexure A and reflected in the marked up conditions of consent in Annexure B. 1. As a consequence of Order (4), the development consent DA264/2015 is now subject to the consolidated modified conditions of consent set out in Annexure C. ………………………. Susan Dixon Senior Commissioner of the Court Annexure A (3.77 MB, pdf) Annexure B (395 KB, pdf) Annexure C (345 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: 03 May 2018