Land and Environment Court New South Wales Medium Neutral Citation: Zam Zam Developments Pty Ltd v Cumberland Council [2018] NSWLEC 1468 Hearing dates: Conciliation conference on 31 August 2018 Date of orders: 31 August 2018 Decision date: 31 August 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See [4] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Zam Zam Developments Pty Ltd (Applicant) Cumberland Council (Respondent) Representation: Solicitors: A Gough, Storey & Gough (Applicant) S Shneider, Houston Dearn O'Connor (Respondent) File Number(s): 2017/227408 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 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 the following plans and documents: Plan Number Prepared By Revision No. Dated DRWG No. A1101 Ghazi Al Ali D 26/03/2018 DRWG No. A1200 Ghazi Al Ali D 20/03/2018 DRWG No. A1201 Ghazi Al Ali D 20/03/2018 DRWG No. A1202 Ghazi Al Ali E 10/04/2018 DRWG No. A1203 Ghazi Al Ali E 10/04/2018 DRWG No. A1204 Ghazi Al Ali E 10/04/2018 DRWG No. A1205 Ghazi Al Ali E 10/04/2018 DRWG No. A1206 Ghazi Al Ali E 10/04/2018 DRWG No. A1207 Ghazi Al Ali E 10/04/2018 DRWG No. A1209 Ghazi Al Ali E 10/04/2018 DRWG No. A1210 Ghazi Al Ali A 20/03/2018 DRWG No. A1300 Ghazi Al Ali E 10/04/2018 DRWG No. A1301 Ghazi Al Ali E 10/04/2018 DRWG No. A1302 Ghazi Al Ali E 10/04/2018 DRWG No. A1400 Ghazi Al Ali E 10/04/2018 DRWG No. A1401 Ghazi Al Ali E 10/04/2018 DRWG No. A1402 Ghazi Al Ali D 20/03/2018 DRWG No. A1403 Ghazi Al Ali C 10/04/2018 DRWG No. A1404 Ghazi Al Ali B 10/04/2018 DRWG No. A2200 Ghazi Al Ali C 10/04/2018 DRWG No. A2201 Ghazi Al Ali D 10/04/2018 DRWG No. A2202 Ghazi Al Ali D 10/04/2018 DRWG No. A3001 Ghazi Al Ali P 31/05/2018 DRWG No. L01A Site Design Studios A 23/02/2018 Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali DRWG No. L02A Site Design Studios A 23/02/2018 Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali DRWG No. L03A Site Design Studios A 23/02/2018 Building footprint as per DRWG No. A1202 Rev E, dated 10/04/2018 and prepared by Ghazi Al Ali DRWG No. L04A Site Design Studios A 23/02/2018 DRWG No. SW02 SGC B 18/04/2018 DRWG No. SW03 SGC B 18/04/2018 DRWG No. SW04 SGC B 18/04/2018 DRWG No. SW05 SGC B 18/04/2018 DRWG No. SW06 SGC B 18/04/2018 DRWG No. SW07 SGC B 18/04/2018 DRWG No. SW08 SGC B 18/04/2018 DRWG No. SW09 SGC B 18/04/2018 DRWG No. SW10 SGC B 18/04/2018 DRWG No. SW11 SGC B 18/04/2018 Geotechnical Investigation Report Alliance Geotechnical - 16 March 2017 Noise Assessment Acoustic Consulting Engineers 03 17 March 2017 Arboricultural Impact Assessment Report Jacksons Nature Works - 10 March 2017 Flood Study Report SGC C 28/11/2017 Issue B BASIX Certificate Number 716050M_04 Greenworld Architectural Drafting - 20 March 2018 Amended clause 4.6 (Height of Building) Morphology Design Associates - - 1. The applicant to pay the Respondent's costs thrown away pursuant to s.8.15 (3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 2. The Applicant's clause 4.6 written request to vary the height control pursuant to clause 4.3 of the Parramatta LEP 2011 is upheld. 3. The appeal is upheld. 4. Development application Number 231/2017 for the for the demolition at 33-35 William Street Granville NSW 2142 ("the land") of existing structures and for construction on the land of a six (6) storey residential flat building in reliance on State Environmental Planning Policy (Affordable Rental Housing) 2009 with two (2) basement levels including basement parking, and containing fifty (50) units comprising eleven (11) one-bedroom units, thirty four (34) two bed units and five (5) three bed units is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………. Michael Chilcott Commissioner of the Court Annexure A (700 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 September 2018