OC Investments Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1250

Land and Environment Court New South Wales

Medium Neutral Citation: OC Investments Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1250 Hearing dates: Conciliation conference on 3 and 16 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: OC Investments Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitor: G McKee, McKees Legal Solutions (Applicant) J Amy, Sutherland Shire Council (Respondent) File Number(s): 2017/351975 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by OC Investments Pty Ltd against the refusal by Sutherland Shire Council of DA17/0383 for demolition of existing structures and the construction of a multi dwelling housing development at 196 Sylvania Road, Miranda (Lot 2 / DP35592). 2. 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". 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 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 granted leave to rely on the amended plans referred to in condition 1 of Annexure "A". 2. The appeal is upheld. 3. Development Application No. 17/0383 for demolition of existing buildings, construction of a multi dwelling housing development with two, two-storey dwellings and a rear villa with attic space, associated drainage and landscaping works at 196 Sylvania Road, Miranda is approved subject to the conditions contained in Annexure "A". 4. The applicant pay the respondent's costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000.00. ………………………. Joanne Gray Commissioner of the Court Annexure A (145 KB, pdf) Annexure B (4.78 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: 25 May 2018