Allan Kosinar v Ku-ring-gai Council

[2016] NSWLEC 1626

Land and Environment Court

New South Wales

Medium Neutral Citation:	Allan Kosinar v Ku-ring-gai Council [2016] NSWLEC 1626
Hearing dates:	Conciliation conference on 15 November, 15 & 21 December 2016
Date of orders:	22 December 2016
Decision date:	22 December 2016
Jurisdiction:	Class 1
Before:	Maston AC
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:	ALLAN KOSINAR (Applicant) KU-RING-GAI COUNCIL (Respondent)
Representation:	Ms A Migliorino, K & L Gates (Applicant) Mr J Merlino, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/245353
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. The appeal is upheld.

2. The Applicant is granted leave to rely upon the amended plan listed in condition 1 of Annexure "A" hereto; and

3. Application No. DA0150/16 for the removal of four trees and planting of 6 replacement trees at the property knows as 7A Derby Street St Ives, is approved subject to the conditions annexed and marked “A”.

…………….

Acting Commissioner Maston

245353.16 Maston (C) (116 KB, pdf)

245353.16 Maston - Plans (1.49 MB, pdf)