Anglican Community Services (trading as Anglicare) v Ku-ring-gai Council

[2017] NSWLEC 1508

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Anglican Community Services (trading as Anglicare) v Ku-ring-gai Council [2017] NSWLEC 1508
Hearing dates:	Conciliation conference on 10 May, 15 June, 4 July & 15 September 2017
Date of orders:	15 September 2017
Decision date:	15 September 2017
Jurisdiction:	Class 1
Before:	Martin SC
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:	Anglican Community Services (trading as Anglicare) (Applicant) Ku-ring-gai Municipal Council (Respondent)
Representation:	Solicitor: Ms F. Rourke (Applicant) Mr A. Hudson (Respondent)
File Number(s):	2016/385681
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 granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions attached and marked "A".

2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of amending Development Application No. DA0257/16, in the agreed sum of $50,000 within 14 days of the date of this Order.

3. The appeal is upheld.

4. Development Application No. DA 0257/16 for alterations and additions including part demolition, construction of new buildings with associated works including landscaping, car parking and engineering works to existing Roden Cutler Retirement Village and the use of these facilities for the purposes of seniors housing (residential care facilities and self-contained dwellings) at 6-10 Edward Street, 1 Melkin End and 37 Rosedale Road, Gordon be approved subject to the conditions in Annexure "A".

……………………….

Senior Commissioner Martin

385681.16 Annexure A (C) (669 KB, pdf)

Amendments

17 October 2017 - Attached conditions - Annexure A