Land and Environment Court New South Wales Medium Neutral Citation: Mackenzie v Blacktown City Council [2018] NSWLEC 1496 Hearing dates: Conciliation conference on 21 September 2018 Date of orders: 26 September 2018 Decision date: 26 September 2018 Jurisdiction: Class 1 Before: Chilcott C Decision: See [4] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Dugald MacKenzie (Applicant) Blacktown City Council (Respondent) Representation: Solicitors: G Christmas, Apex Planning and Environment Law (Applicant) L Raffaele, Bartier Perry (Respondent) File Number(s): 2018/56394 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 s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant's clause 4.6 written request to the contravention of clause 4.3 of the Blacktown Local Environmental Plan 2015 be upheld. 2. The Applicant is granted leave to rely upon the following amended material: Drawing reference Title Prepared by Date A1.01, Revision D Title Page Mackenzie Architects International 24 August 2018 A2.00, Revision C Demolition Plan Mackenzie Architects International 17 August 2018 A2.01, Revision E Proposed Site Plan Mackenzie Architects International 17 August 2018 A3.22 Revision F Basement 3 & 2 Mackenzie Architects International 17 August 2018 A3.23, Revision G Basement 1 & Ground Floor Mackenzie Architects International 3 August 2018 A3.24, Revision F 1st & 2nd Floor Plan Mackenzie Architects International 17 August 2018 A3.25, Revision F 3rd and & 4th Floor Plan Mackenzie Architects International 17 August 2018 A3.26, Revision H 5th & Common Open Space Level Floor Plan Mackenzie Architects International 17 August 2018 A3.41, Revision F Roof Plan Mackenzie Architects International 16 August 2018 A4.01, Revision F East (Carinya St) & West Elevations Mackenzie Architects International 16 August 2018 A4.02, Revision F North & South Elevations Mackenzie Architects International 16 August 2018 A5.01, Revision G Sections A-A & B-B Mackenzie Architects International 16 August 2018 A5.02, Revision F Sections C-C & D-D Mackenzie Architects International 16 August 2018 A5.03, Revision D Sections E-E Mackenzie Architects International 16 August 2018 A5.04, Revision A Driveway Sections for MRV Clearances Mackenzie Architects International 16 August 2018 A6.01, Revision D Schedule of Finishes Mackenzie Architects International 17 August 2018 A6.02, Revision E Building Height Plane Mackenzie Architects International 17 August 2018 A7.01, Revision F Site Calcs – Common Open Space (COS) Mackenzie Architects International 16 August 2018 A7.02, Revision B Site Calculations – Deep Soil & Landscape Mackenzie Architects International 16 August 2018 A8.01, Revision B Shadow Diagrams 9-12: Proposed & Existing Mackenzie Architects International 16 August 2018 A8.02, Revision B Shadow Diagrams 1-3: Proposed Existing Mackenzie Architects International 17 August 2018 A8.03, Revision B Solar Study Mackenzie Architects International 17 August 2018 LPS34 17-181, Page 1, Revision G Landscape Plan Conzept Landscape Architects 24 August 2018 LPS34 17-181, Page 2, Revision G Level 5 COS Landscape Plan Conzept Landscape Architects 24 August 2018 LPS34 17 – 181, Page 3, Revision E Detail Conzept Landscape Architects 24 August 2018 LPS34 17 – 181, Page 4, Revision E Specification & Detail Conzept Landscape Architects 24 August 2018 16075-DA-C1.01, Revision 4 Cover Sheet Dawes Consulting Engineers 19 August 2018 16075-DA-C1.02, Revision 4 General Arrangement Plan Dawes Consulting Engineers 19 August 2018 16075-DA-C2.01, Revision 4 Concept Sediment and Erosion Control Plan Dawes Consulting Engineers 19 August 2018 16075-DA-C2.02, Revision 4 Sediment and Erosion Control Details Dawes Consulting Engineers 19 August 2018 16075-DA-C3.01, Revision 5 Concept Stormwater Management Plan – Ground Floor – Sheet 1 Dawes Consulting Engineers 21 August 2018 16075-DA-C3.02, Revision 4 Concept Stormwater Management Plan Ground Floor – Sheet 2 Dawes Consulting Engineers 19 August 2018 16075-DA-C3.03, Revision 4 Concept Stormwater Management Plan – Basement 01 Dawes Consulting Engineers 19 August 2018 16075-DA-C4.05, Revision 2 Stormwater Longitudinal Sections Dawes Consulting Engineers 19 August 2018 16075-DA-C5.01, Revision Details Sheet Dawes Consulting Engineers 19 August 2018 16075-DA-C6.01, Revision 4 Stormwater Catchment Plan Dawes Consulting Engineers 19 August 2018 Amended Waste Management Plan prepared by Mackenzie Architects International dated 2 August 2018 BASIX Certificate No 790293M_02 dated 27 August 2018 Nathers Certificate No 0003107610 dated 27 August 2018 Clause 4.6 Variation Request prepared by Think Planners dated 17 August 2018 1. The appeal is upheld. 2. The Applicant is to pay the Respondent's costs under section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. Development Application No. SPP-17-00048, as amended, for the demolition of the existing dwellings and the construction of 6 storey residential flat building with basement carparking at 13-17 Carinya Street, is approved subject to the conditions in Annexure 'A'. ………………………. M Chilcott Commissioner of the Court Annexure A (C) Annexure B 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: 26 September 2018