Claimant Wins Appeal for Six-Storey Residential Building

The claimant's appeal against the refusal of a development application was successful after reaching an agreement with the respondent at a conciliation conference. The court approved the amended plans for the demolition of existing structures and construction of a six-storey residential flat building, subject to certain conditions.

OUTCOME: Allowed

Land and [ADDRESS] South Wales

Medium Neutral Citation: [COMPANY] v [NAME] of Canterbury Bankstown Council [2017] NSWLEC 1315 Hearing dates: Conciliation conference on 16 June 2017 Date of orders: 19 June 2017 Decision date: 19 June 2017 Jurisdiction: Class 1 Before: [NAME] C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: construction of a residential flat building; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and [ADDRESS] 1979 Category: Principal judgment Parties: [APPELLANT] (Applicant) [NAME] of Canterbury Bankstown Council (Respondent) Representation: Solicitor: [redacted] [NAME] [APPELLANT] Lawyers (Respondent) File Number(s): 2017/11170 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-506/2016 for the demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking at 749-[ADDRESS], Belmore.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and [ADDRESS] 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. [ADDRESS] 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 s34(3) of the Land and [ADDRESS] 1979 are:

1. The appeal is upheld.

2. The Applicant is granted leave to amend Development Application No. DA-506/2016 and to rely upon the following amended plans and documents, copies of which are behind Annexure "A":

3. The Applicant is to pay the Respondent's costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

4. Development Application No. DA-506/2016 (as amended) for the proposed demolition of existing structures and construction of a six-storey residential flat building including 46 dwellings with basement car parking on Lots 12, 13 and 14 in Deposited Plan 4387, otherwise known as 749-[ADDRESS], Belmore, be approved subject to the conditions contained at Annexure "B". ………………………. Commissioner [NAME] "A"- [COMPANY] v [NAME] of Canterbury Bankstown Council - Appeal No 2017/11170 Drawing No. Drawing Name Prepared by Date S34-000, Revision 02 [NAME] 4 May 2017 S34-001, Revision 02 Site Analysis Plan & [NAME] 4 May 2017 S34-002, Revision 02 [NAME] 4 May 2017 S34-101, Revision 03 [NAME] 4 May 2017 S34-102, Revision 03 Site Plan & [NAME] 4 May 2017 S34-103, Revision 03 Levels 1-3 [NAME] 4 May 2017 S34-104, Revision 03 Levels 4-5 [NAME] 4 May 2017 S34-111, Revision 03 [NAME] 4 May 2017 S34-112, Revision 03 [NAME] 4 May 2017 S34-121, Revision 03 Shadow Diagrams – Existing 9am 21st [NAME] 4 May 2017 S34-122, Revision 03 Shadow Diagrams – Proposed 9am 21st [NAME] 4 May 2017 S34-123, Revision 03 Shadow Diagrams – Existing 12pm 21st [NAME] 4 May 2017 S34-124, Revision 03 Shadow Diagrams – Proposed 12pm 21st [NAME] 4 May 2017 S34-125, Revision 03 Shadow Diagrams – Existing 3pm 21st [NAME] 4 May 2017 S34-126, Revision 03 Shadow Diagrams – Proposed 3pm 21st [NAME] 4 May 2017 S34-131, Revision 03 Shadow [NAME] 4 May 2017 S34-132, Revision 03 Shadow Diagrams – North Elevation – Sheet 1 [NAME] 4 May 2017 S34-133, Revision 03 Shadow [NAME] 4 May 2017 S34-134, Revision 03 Shadow Diagrams – North Elevation – Sheet 2 [NAME] 4 May 2017 S34-135, Revision 03 Shadow Diagrams – North Elevation – Sheet 3 [NAME] 4 May 2017 S34-136, Revision 03 Balcony Shadow [NAME] 4 May 2017 S34-137, Revision 03 Balcony Shadow [NAME] 4 May 2017 S34-141, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 1 [NAME] 4 May 2017 S34-142, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 2 [NAME] 4 May 2017 S34-143, Revision 03 Shadow Diagrams – Neighbour Elevations Sheet 3 [NAME] 4 May 2017 S34-201, Revision 03 Elevations – Sheet 1 [NAME] 4 May 2017 S34-202, Revision 03 Elevations – Sheet 2 [NAME] 4 May 2017 S34-301, Revision 03 Section AA [NAME] 4 May 2017 S34-302, Revision 03 Section BB [NAME] 4 May 2017 S34-303, Revision 03 Section CC [NAME] 4 May 2017 S34-304, Revision 03 Section DD [NAME] 4 May 2017 S34-305, Revision 03 Section EE [NAME] 4 May 2017 S34-311, Revision 03 Driveway & [NAME] 4 May 2017 SK00, Revision C Landscape Site Plan/[NAME] SK01, Revision J Landscape [NAME] SK02, Revision D Landscape Plan Level 04 [NAME] 16H-497-DA-00, Revision B [COMPANY] 1 May 2017 16H-497-DA-01, Revision A General Notes & [COMPANY] 16 August 2016 16H-497-DA-02, Revision B Concept SW/Drainage Plan – Basement Level 2 [COMPANY] 1 May 2017 16H-497-DA-03, Revision B Concept SW/Drainage Plan – Lower Basement Level 1 [COMPANY] 1 May 2017 16H-497-DA-04, Revision B Concept SW/Drainage [COMPANY] 1 May 2017 16H-497-DA-04, Revision B Concept SW/Drainage Plan – Ground Level (OSD Details) [COMPANY] 1 May 2017 16H-497-DA-06, Revision B Concept SW/Drainage Plan – Drains Results Sheet 1 of 2 [COMPANY] 1 May 2017 16H-497-DA-07, Revision B Concept SW/Drainage Plan – Drains Results Sheet 2 of 2 [COMPANY] 1 May 2017 16H-497-DA-09, Revision B Concept SW/Drainage [COMPANY] 1 May 2017 16H-497-DA-09, Revision A [COMPANY] 24 October 2016 16H-497-DA-10, Revision A Soil and Water Management [COMPANY] 24 October 2016 DA211, Revision B Exterior Finishes Schedule – Sheet 1 [NAME] 9 May 2017 DA212, Revision B External Finishes Schedule – Sheet 2 [NAME] 9 May 2017 DA213, Revision B External Finishes Schedule – Sheet 3 [NAME] 9 May 2017 DA214, Revision B External Finishes Schedule – Sheet 4 [NAME] 9 May 2017 Document Prepared by Date BASIX Certificate Number 771735M_02 [COMPANY] 8 May 2017

11170.17 [NAME] (4.60 MB, pdf) 11170.17 [NAME] (5.76 MB, pdf) 11170.17 [NAME] (4.64 MB, pdf) 11170.17 [NAME] 2 (678 KB, pdf) 11170.17 [NAME] B (299 KB, pdf)

Amendments 21 June 2017 - Clerical error 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: 21 June 2017