Land and Environment Court New South Wales Medium Neutral Citation: GCK Investments Pty Ltd v Georges River Council [2018] NSWLEC 1343 Hearing dates: Conciliation conference on 5 July 2018 Date of orders: 05 July 2018 Decision date: 05 July 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – mixed use development - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: GCK Investments Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Solicitors: A Gough, Storey & Gough (Applicant) J Ware, Georges River Council (Respondent) File Number(s): 2017/235909 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by GCK Investments Pty Ltd against the actual refusal by Georges River Council of Development Application DA/183/2016 for the demolition of existing buildings and construction of a ten (10) storey mixed use development consisting of ground floor commercial tenancy and residential apartments over basement car parking at 41-47 Princess Highway, Kogarah (Lots 125-127 DP 1397 & Lot 128 DP 179777). 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 s 34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to rely on an amended development application incorporating: 1. architectural plans prepared by MKA, dated July 2018, Issue LEC-C and drawing Nos DA100 to DA117. 2. Landscape Plans prepared by RFA, dated 26 June 2018, Issue C and drawing Nos L-01/2 and L-02/2. 3. BASIX Certificate No. 757477M_04. 1. The applicant is to pay the respondent's costs thrown away as a result of the amendment of the development application pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $16,000 within 28 days. 2. The appeal is upheld. 3. Development application DA/183.2016 for the demolition of existing buildings and construction of a ten (10) storey mixed use development consisting of ground level tenancy and 52 residential apartments at No. 41-47 Princes Highway, Kogorah is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………. Commissioner Gray Annexure A (253 KB, pdf) Plans 1 (7.59 MB, pdf) Plans 2 (1.95 MB, pdf) Basix (1.46 MB, pdf) Verification (168 KB, pdf) Amendments 25 July 2018 - Decision maker corrected to Gray C 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 July 2018