Affinity Property Investment Pty Ltd v Wollongong City Council [2017] NSWLEC 1756

Land and Environment Court New South Wales

Medium Neutral Citation: Affinity Property Investment Pty Ltd v Wollongong City Council [2017] NSWLEC 1756 Hearing dates: Conciliation conference on 10 January 2018 Date of orders: 10 January 2018 Decision date: 10 January 2018 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and the construction of a shop top housing development; 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: Affinity Property Investment Pty Ltd (Applicant) Wollongong City Council (Respondent) Representation: Solicitors: Ms E Fleming, SWAAB Attorneys (Applicant) Mr D Loether, Bartier Perry Lawyers (Respondent) File Number(s): 2017/81774 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of DA No. 2016/1073 for the demolition of existing structures and the construction of a shop top housing development at 31-33 Atchison Street, Wollongong, 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 s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to rely on the following further amended plans: Drawing No. and Issue Title Prepared by Date a2102 Issue Z1 Floor Plan – Basement 1 RFA Architects 23 November 2017 a2103 Issue Z1 Floor Plan – ground floor RFA Architects 23 November 2017 a2105 Issue Z1 Floor Plan – Level 2 RFA Architects 23 November 2017 a2106 Issue Z1 Floor Plan – Level 3 RFA Architects 23 November 2017

1. The appeal is upheld; 2. The Applicant's cl.4.6 written request to vary the clause 8.6 within the Wollongong Local Environmental Plan 2009 which relates to building separations within Zone B3 Commercial Core is upheld; 3. Deferred development consent is granted to DA No. 2016/1073 for the demolition of existing structures and the construction of a shop top housing development comprising a twelve storey building comprising 1 retail/business premises, a child care centre with places for 61 children on the ground floor, 44 residential apartments, and two levels of basement car parking on Lot 1 DP 782358 and Lot 1 DP 152994, on land known as 31-33 Atchison Street, Wollongong, subject to the conditions in Annexure 'A'. ………………………. Commissioner G Brown Annexure A (C) (421 KB, pdf) Annexure B (4.13 MB, pdf)

Amendments 01 February 2018 - Corrections made to Year of Orders (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: 01 February 2018