Assabgy v Hunter's Hill Council

[2016] NSWLEC 1449

Land and Environment Court

New South Wales

Medium Neutral Citation:	Assabgy v Hunter's Hill Council [2016] NSWLEC 1449
Hearing dates:	Conciliation conference on 26 September 2016
Date of orders:	26 September 2016
Decision date:	26 September 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Julie-Ann Assabgy (Applicant) Hunter's Hill Council (Respondent)
Representation:	Counsel: Michael Staunton (Applicant) Solicitors: Anthony Price, Price & Company (Applicant) John Cole, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00165470
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, 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 applicant is granted leave to rely on the following documents as part of development application DA2015/1136:

1. The following architectural plans, prepared by Hudson Homes, dated 23 September 2016, Revision M:

(A) Basix Certificate Sheet 1;

(B) Site Plan Sheet 2;

(C) Ground Floor Plan, Sheet 3;

(D) First Floor Plan, Sheet 4;

(E) Elevation Plan, Sheet 5;

(F) Cabana and swimming pool plans, Sheet 6;

(G) Sections & Front Fencing Detail, Sheet 7;

(H) Site Analysis, Sheet 2.1;

(I) Erosion and Sediment Control Plan, Sheet 2.2;

(J) Notification Plan, Sheet 2.3;

(K) Shadow Diagram - 21st June to First Floor of House Only, Sheet 2.4;

(L) Shadow Diagram - 21st December to First Floor of House Only, Sheet 2.5;

(M) Demolition Plan, Sheet 2.6; and

(N) Site Calculation Plan, Sheet 2.7.

2. Basix Certificate number 640837S_04, prepared by Frys Energywise dated 16 September 2016.

3. Nathers Certificate number 0000757674 dated 16 September 2016.

4. Arboricultural Impact Assessment Report prepared by Glenyss Laws Consulting Arborist dated 20 October 2015, Revision A.

5. Stormwater layout & Details Sheets 1 & 2 of 2, prepared by Ibrahim Stormwater Consultants, Revision A and dated 20 July 2015.

6. Proposed Landscape Plan L/01, prepared by A total Concept Landscape Architects, Revision B, dated 3 November 2015 as amended by Site Plan Revision M Sheet 2.

7. Landscape Details L/02, prepared by A Total Concept Landscape Architects, dated 15 June 2015 as amended by Site Plan Revision M Sheet 2.

8. Landscape Specifications, prepared by A Total Concept Landscape Architects, dated 15 June 2015.

9. Schedule of Colours and Materials Scheme Option 2 Blue Brown Drawing Nos. SC01 & SC02 Sheets 1 & 2 of 2 dated 26 September 2016.

2. The Applicant is to pay the Respondent's cost arising under section 97B of the Environmental Planning and Assessment Act 1979, in the amount of $1,500.

3. The appeal is upheld.

4. Development Application DA2015/1136 for the demolition of existing dwelling and erection of a double storey dwelling with swimming pool and cabana at 18 Farnell Street, Hunters Hill is approved subject to the conditions in Annexure A.

…………….

Jenny Smithson

Commissioner

165470.16 - Annexure A (96.2 KB, pdf)