Unity Link (Vic) Pty Ltd v Cumberland Council [2018] NSWLEC 1349

Land and Environment Court New South Wales

Medium Neutral Citation: Unity Link (Vic) Pty Ltd v Cumberland Council [2018] NSWLEC 1349 Hearing dates: Conciliation conference on 6, 28 June 2018 Date of orders: 09 July 2018 Decision date: 09 July 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Unity Link (Vic) Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Solicitors: V Conomos, Conomos Legal (Applicant) C Gough, Storey Gough Law (Respondent) File Number(s): 2018/60530 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Unity Link (Vic) Pty Ltd against Cumberland Council's deemed refusal of DA 454/2017 for the demolition of all existing structures, removal of trees and the construction of a five (5) storey mixed use development encompassing two retail tenancies on the ground floor with four (4) levels of residential use above, over two levels of basement car parking at 44-46 Pegler Avenue, South Granville. 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 given leave to amend the development application and rely upon the following plans in the proceedings: * Drawing A1000, Revision B, dated 22/5/2018 * Drawing A1010, Revision B, dated 22/5/2018 * Drawing A1101, Revision B, dated 22/5/2018 * Drawing A1202, Revision C, dated 12/6/2018 * Drawing A1201, Revision C, dated 12/6/2018 * Drawing A1203, Revision C, dated 12/6/2018 * Drawing A1204, Revision C, dated 12/6/2018 * Drawing A1205, Revision C, dated 12/6/2018 * Drawing A1206, Revision C, dated 12/6/2018 * Drawing A1207, Revision C, dated 12/6/2018 * Drawing A1208, Revision C, dated 12/6/2018 * Drawing A1301, Revision C, dated 12/6/2018 * Drawing A1302, Revision C, dated 12/6/2018 * Drawing A1401, Revision C, dated 12/6/2018 * Drawing A1402, Revision C, dated 12/6/2018 * Drawing A1403, Revision C, dated 12/6/2018 * Drawing A2040, Revision C, dated 12/6/2018 * Drawing A2201, Revision C, dated 12/6/2018 * Drawing A2202, Revision C, dated 12/6/2018 1. The appeal is upheld. 2. Development application DA 454/2017 lodged on 2 November 2017 seeking approval for the demolition of all existing structures, removal of trees and the construction of a five (5) storey mixed use development encompassing two retail tenancies on the ground floor with four (4) levels of residential use above, over two levels of basement car parking is approved subject to the conditions in Annexure A. ………………………. D M Dickson Commissioner of the Court Annexure A (248 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: 09 July 2018