Bayswater Car Rental Pty Ltd v Bayside Council [2018] NSWLEC 1574

Land and Environment Court New South Wales

Medium Neutral Citation: Bayswater Car Rental Pty Ltd v Bayside Council [2018] NSWLEC 1574 Hearing dates: Conciliation conference on 24 October 2018 Date of orders: 05 November 2018 Decision date: 05 November 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] 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: Bayswater Car Rental Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitors: A Whealy, Mills Oakley (Applicant) J Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/111912 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Bayswater Car Rental Pty Ltd against the actual refusal by Bayside Council of development application DA2017/1042. The application is seeking consent for alterations and additions to the existing warehouse and the change of use to a vehicle hire premises and transport depot in Unit 3 at 55 Kent Road, Mascot (Lot X DP 408199). 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 the amended plans dated 3 October 2018, copies of which are behind Annexure "A" for the purpose of the development application. 2. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $9,000.00 within 28 days. 3. The appeal is allowed. 4. Development application no. 2017/1042 for a transport depot for the parking, storage and distribution of cars, a vehicle body repair workshop for the preparation, maintenance, servicing and repairs of the Bayswater fleet, general business administration, staff amenities, storage of spare car parts, and ancillary care hire is approved subject to the conditions in Annexure "B". ………………………. D M Dickson Commissioner of the Court Annexure A (2.11 MB, pdf) Annexure B (137 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: 06 November 2018