ACN 605 170 081 Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1078

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	ACN 605 170 081 Pty Ltd v Northern Beaches Council [2017] NSWLEC 1078
Hearing dates:	Conciliation conference on September 9, October 18, November 29 and December 20 2016 and February 1 2017
Date of orders:	22 February 2017
Decision date:	22 February 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	ACN 605 170 081 Pty Ltd (Applicant) Northern Beaches Council (Respondent) Sydney North Planning Panel (Respondent)
Representation:	Solicitors: P Murray, Dibbs Barker (Applicant) S Patterson, Wilshire Webb Staunton Beattie (First Respondent) L McAndrew, Department of Planning and Environment (Second Respondent)
File Number(s):	2016/169513
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 s34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely on the plans and documents referred to in Condition 1 of Annexure “A” to this agreement.

2. Pursuant to s97B(2) Environmental Planning and Assessment Act 1979 NSW the Applicant is to pay the First Respondent’s costs of $6,000.00 on or before 2 March 2017, being costs thrown away as a result of the Applicant amending the Development Application.

3. The appeal is upheld.

4. Development Consent is granted to Development Application No. 2015/1306 for the demolition of existing structures and the construction of a mixed use development with associated car parking and landscaping on land located between 5 Mooramba Rd Dee Why NSW 2099 and 627-635 Pittwater Rd Dee Why NSW 2099 (dual street frontages) and comprising four allotments which are legally described as Lot 3A DP 402105; Lot 4 DP 659075; Lot 5 DP 655009 and Lot 100 DP 595110, subject to the conditions annexed to this Agreement at Annexure “A”.

…………….

J Smithson

Commissioner

169513.16 Annexure A (C) Slip Rule (165 KB, pdf)

169513.16 Architectural Plans (18.7 MB, pdf)

Amendments

24 February 2017 - 'Before' changed to Smithson C

07 March 2017 - Pursuant to UCPR 36.17, the slip rule, amend orders of 22 February 2017 so that attached Conditions – Annexure A - are numbered.

10 March 2017 - Correct Annexure A put in Judgment as per original slip rule