AHR Group Pty Ltd v Randwick City Council [2018] NSWLEC 1385

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Land and Environment Court New South Wales Amendment notes Medium Neutral Citation: AHR Group Pty Ltd v Randwick City Council [2018] NSWLEC 1385 Hearing dates: Conciliation conference on 19 July 2018 Date of orders: 19 July 2018 Decision date: 19 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: AHR Group Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Counsel: M Staunton (Applicant) K Lindeman (Respondent) Solicitors: Hartley Solicitors (Applicant) Norton Rose Fulbright Australia (Respondent) File Number(s): 2017/255160 Publication restriction: No Judgment COMMISSIONER : This is an appeal by AHR Group Pty Ltd against the deemed refusal by Randwick City Council of DA/399/2016/B to modify a development consent granted by the Council on 11 October 2016. The application seeks to increase the size of the basement carpark to provide two (2) additional spaces, conversion of the ground level plant room to a rumpus room for Unit 5 and to reinstate a spa and associated facilities at the upper level at 89-91 Bream Street, Coogee (Lot 1 DP 724924). 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”. 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. 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. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are: The applicant is granted leave to amend the modification application and to rely on the following amended plans by CSA Architects: Proposed car park plan, Drawing no AHR-08 Revision O dated 25/06/2018; Proposed ground floor plan, Drawing no AHR-09 Revision P dated 18/07/2018; Proposed first floor plan, Drawing no AHR-10 Revision O dated 25/06/2018; Proposed second floor plan, Drawing no AHR-10 Revision O dated 25/06/2018 Proposed third floor plan, Drawing no AHR-12 Revision P dated 18/07/2018; Proposed roof plan, Drawing AHR-13 Revision P dated 18/07/18; Proposed elevations, Drawing no AHR -14 Revision P dated 18/07/2018; Proposed elevation & section Drawing AHR-15 Revision P dated 18/07/2018; and Proposed unit 2 bedroom planting drawing AHR-103 Revision P dated 18/07/2018. The Appeal is upheld. The modifications sought in these proceedings, being modification B (as amended in accordance with (a) above), to development consent DA 399/2016 granted for alterations and additions to the existing residential flat building at 89-91 Bream Street, Coogee is approved subject to the schedule of modified conditions set out in Annexure “A” and the consolidated conditions as set out in Annexure “B”. …………… …………. D M Dickson Commissioner of the Court Annexure A (162 KB, pdf) Annexure B (480 KB, pdf) Plans (4.38 MB, pdf) Amendments 13 August 2018 - Pursuant to UCPR 36.17, the slip rule, amend Condition 2.o. in Annexure “A” of orders of 19 July 2018. 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: 13 August 2018