Land and Environment Court New South Wales Medium Neutral Citation: Environa Studio Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1481 Hearing dates: Conciliation conference on 7 September 2018 Date of orders: 07 September 2018 Decision date: 07 September 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 Category: Principal judgment Parties: Environa Studio Pty Ltd (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: S Hale, Mills Oakley (Applicant) J Ede, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/292337 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 upon the following amended plans and documents: Plan No. Title Prepared by Date 030 Rev H Site Plan Environa Studio 16 July 2018 100 Rev C Floor Plan – Basement Environa Studio 16 July 2018 101 Rev H Floor Plan – Level 1 Environa Studio 16 July 2018 102 Rev H Floor Plan – Level 2 Environa Studio 16 July 2018 103 Rev H Floor Plan – Level 3 Environa Studio 16 July 2018 104 Rev H Floor Plan – Level 4 Environa Studio 16 July 2018 110 Rev H Roof Plan Environa Studio 16 July 2018 120 Rev H Section AA Environa Studio 16 July 2018 121 Rev H Section BB Environa Studio 16 July 2018 122 Rev C Section CC Environa Studio 16 July 2018 123 Rev A Section DD Environa Studio 16 July 2018 124 Rev A Section DD Sheet 2 Environa Studio 16 July 2018 130 Rev H South West Elevation Environa Studio 16 July 2018 131 Rev H North East Elevation Environa Studio 16 July 2018 132 Rev H North West Elevation Environa Studio 16 July 2018 133 Rev H South East Elevation Environa Studio 16 July 2018 901 Rev H 3D Perspectives Sheet 1 Environa Studio 16 July 2018 902 Rev H 3D Perspectives Sheet 2 Environa Studio 16 July 2018 903 Rev C 3D Perspectives Sheet 3 Environa Studio 16 July 2018 904 Rev C 3D Perspectives Sheet 4 Environa Studio 16 July 2018 910 Rev H Shadow Diagrams June 21 – Plan View Environa Studio 16 July 2018 913 Rev H Solar Access Study – Communal Living Room Glazing – 21 June Environa Studio 16 July 2018 914 Rev H Solar Access Study – Communal Open Space – 21 June Environa Studio 16 July 2018 930 Rev F BASIX Commitments Environa Studio 16 July 2018 980 Rev H Area Calculation Summary – Sheet 1 Environa Studio 16 July 2018 981 Rev H Area Calculation Summary – Sheet 2 Environa Studio 16 July 2018 982 Rev H Area Calculation Summary – Sheet 3 Environa Studio 16 July 2018 L 501 Rev B Specifications and Plant Schedule ELKE 25 May 2018 L 502 Rev B Details ELKE 25 May 2018 L 101 Rev E North Eastern Zone ELKE 25 May 2018 L 102 Rev E Western Zone ELKE 25 May 2018 L 103 Rev A Level 2 and 3 Balconies ELKE 25 May 2018 L 104 Rev A Rooftop Planters ELKE 25 May 2018 C1 Rev E Coversheet and notes ACOR 13 July 2018 C2 Rev E Stormwater Management Plan – Basement ACOR 13 July 2018 C3 Rev E Stormwater Management Plan – Level 1 (Sheet 1) ACOR 13 July 2018 C4 Rev E Stormwater Management Plan – Level 1 (Sheet 2) ACOR 13 July 2018 C5 Rev E Stormwater Management Details Sheet No. 1 ACOR 13 July 2018 C6 Rev E Stormwater Management Details Sheet No. 2 ACOR 13 July 2018 C7 Rev E Stormwater Management Details Sheet No. 3 ACOR 13 July 2018 C8 Rev E Stormwater Management Details Sheet No. 4 ACOR 13 July 2018 C9 Rev E Stormwater Management Details Sheet No. 5 ACOR 13 July 2018 Sheet 1 Plan Showing Selected Detail & Levels Over No. 19 Bibby Street, Chiswick Norton Survey Partners 28 August 2018 PTC-001 Rev 1 Ground Clearance Assessment PTC Consultants 12 July 2018 Clause 4.6 request for an exception to the height of buildings development standard Sutherland & Associates Planning 7 September 2018 1. The Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $7,000 within 28 days. 2. The Applicant's clause 4.6 written request to vary the height limit is upheld. 3. The appeal is upheld. 4. Development Application No. DA2017/0234 for the demolition of the existing structures and construction a new four (4) storey boarding house comprising 31 boarding rooms (including a caretaker's room) at 19 Bibby Street, Chiswick, is approved, subject to the conditions set out in Annexure "A". ………………………. Michael Chilcott Commissioner of the Court Annexure A (521 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: 11 September 2018