Baudinet v Lake Macquarie City Council

[2015] NSWLEC 1547

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Baudinet v Lake Macquarie City Council [2015] NSWLEC 1547
Hearing dates:	Conciliation conference on 22 December 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: construction of dwelling house, retaining walls, swimming pool and half tennis court; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Heritage Act 1977 Mine Subsidence Compensation Act 1961 Lake Macquarie Local Environmental Plan 2004
Category:	Principal judgment
Parties:	Bruce Warren Baudinet and Lindsay Anne Baudinet (Applicants) Lake Macquarie City Council (Respondent)
Representation:	Counsel: Ms J McKelvey (Applicants) Mr J Connors (Respondent) Solicitors: Mr A Mutton, Andrews & Holm (Applicants) Mr S Lucy, Lake Macquarie City Council (Respondent)
File Number(s):	10806 of 2015
Publication restriction:	Nil

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.

2. The development application the subject of the appeal is for the construction of a dwelling house, retaining walls, swimming pool and half tennis court at 25 Hale Street Catherine Hill Bay, on the site of the former Wallarah House which was damaged by fire in 2013. The development application is for integrated development, as approvals under the Heritage Act 1977 and the Mine Subsidence Compensation Act 1961 are required. The parties have provided a copy of an assessment of the application by the Council’s Senior Development Planner, which includes determination of permissibility pursuant to cl 142 of the Lake Macquarie Local Environmental Plan 2004; and copies of written submissions made in response to the Council’s notification of the amended plans which are the subject of Order 1. The proposed Conditions contained in Annexure A include conditions required by the NSW Heritage Council in its assessment of the amended application, including the public submissions, and its determination to issue General Terms of Approval.

3. 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”.

4. 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.

5. 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.

6. The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.

…………….

Linda Pearson

Commissioner

10806 of 2015 Orders (8.31 KB, pdf)

10806 of 2015 - Annexure A (121 KB, pdf)

15.10806_2 - Revised_Set (16.9 MB, pdf)

Amendments

24 December 2015 - Attachments modified.