(ACN 601 309 237) v Northern Beaches Council

[2017] NSWLEC 1522

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lotus Project Management Pty Ltd ; (ACN 601 309 237) v Northern Beaches Council [2017] NSWLEC 1522
Hearing dates:	Conciliation conference on 24 July 2017
Date of orders:	21 September 2017
Decision date:	21 September 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Act 1979, s 97B Land and Environment Court Act 1979, s34
Category:	Principal judgment
Parties:	Lotus Project Management Pty Ltd (ACN 601 309 237) (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Ms A Hemming, barrister (Applicant) Mr S Patterson, solicitor (Respondent) Solicitors: Chedid Storey Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/78237
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 s 34(3) of the Court Act are:

1. The appeal is upheld.

2. The Applicant is granted leave to rely upon the amended plans and documents as referred to in the conditions of consent contained in Annexure “A” and included at Annexure “B”.

3. The Applicant’s clause 4.6 written request to vary the height limit is upheld.

4. Development Application no. DA2016/1318 for the demolition of existing structures and construction of a Shop Top Housing Development comprising two levels of basement car parking, six (6) commercial units on ground floor and 24 residential apartments over four levels (1, 2 and 3 bedroom) and associated landscaping at 259 Condamine Street, Manly Vale NSW, is approved, subject to the conditions set out in Annexure “A” and the plans contained in Annexure “B”.

5. The Applicant is to pay the costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 as agreed or as assessed.

……………………….

Commissioner Dixon

Annexure A (C) (493 KB, pdf)

Annexure B (Approved Plans) (6.13 MB, pdf)

Annexure B (Landscape Plans) (4.66 MB, pdf)