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New South Wales |
Case Name: | Bellevue Projects Pty Ltd v Ku-ring-gai Council |
Medium Neutral Citation: | [2016] NSWLEC 1378 |
Hearing Date(s): | Conciliation conference on 2, 3, 4 August 2016 |
Date of Orders: | 12 August 2016 |
Decision Date: | 12 August 2016 |
Jurisdiction: | Class 1 |
Before: | Dixon C |
Decision: | See (4) below |
Catchwords: | SUBDIVISION APPEAL: conciliation conference; agreement between the parties; orders |
Legislation Cited: | Environmental Planning & Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Bellevue Projects Pty Ltd (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/00154684 |
Publication Restriction: | No |
JUDGMENT
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”.
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.
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.
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 amend the development application to rely upon the following plans:
| Title/Name | Drawing No. | Revision/Issue | Date | Prepared by |
| Subdivision Plan | DA 15/07/05 | A | 28/08/2015 | Frank Bortolotti |
| Proposed Driveway + Sub-division Site Plan | DA 15/06/01 | G | 05/08/2016 | Frank Bortolotti |
| L&EC Entry + Site Plan | DA 15/06/02 | B | 05/08/2016 | Frank Bortolotti |
| Driveway Profile Existing Bitumen Surface | SK10 | F | 05/08/2016 | Acor Consultants (CC) Pty Limited |
| Proposed Driveway Plan | SK11 | F | 05/08/2016 | Acor Consultants (CC) Pty Limited |
| Stormwater Management Plan | SK12 | F | 05/08/2016 | Acor Consultants (CC) Pty Limited |
| Interallotment Drainage Plan & Interallotment Drainage Longitudinal Section | SK-LS1 | B | 05/08/2016 | Acor Consultants (CC) Pty Limited |
| Driveway Cross Sections | LE1 | B | 04/08/2016 | Acor Consultants (CC) Pty Limited |
| Driveway Longitudinal Section Alignment LS1 | LE2 | B | 04/08/2016 | Acor Consultants (CC) Pty Limited |
| Driveway Cross Sections – Sheet 2 | LE3 | B | 04/08/2016 | Acor Consultants (CC) Pty Limited |
| Landscape Plans 3 sheets hand drawn | Geoffrey Britten |
(2)The Applicant is to pay those costs of the Respondent thrown away pursuant to section 97B of the Environmental Planning & Assessment Act 1979, as a result of amending the development application in accordance with Order (1) in a sum as agreed or assessed.
(3)The Appeal is upheld.
(4)Development Application No. N0384/15 for a one into two lot subdivision, construction of driveway, tree removal, landscape works, servicing of the proposed lot including stormwater works and construction of fencing and gates at 35 Water Street, Wahroonga is approved subject to the conditions in Annexure “A”.
The Court notes the undertaking of the Applicant to the Court that the Applicant will retain Mr Guy Paroissien to supervise any driveway construction works which are approved to be carried out within the tree protection zones of the tree numbered T31/Cedrus deodar (Himalayan Cedar) on the approved plans and in accordance with the approved Tree -Sensitive Construction Sequence Plan.
…………….
Susan Dixon
Commissioner
154684.16 - Annexure A (191 KB, pdf)
- AGLC
- Bellevue Projects Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1378
- Case
- [2016] NSWLEC 1378
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether the notice issued by the Council complied with the statutory requirements under the Local Government Act 1993. Specifically, the court had to determine if the notice was sufficiently particularised and if it provided the applicant with adequate information to enable a proper response to the allegations. The applicant argued that the notice was vague and insufficiently detailed, thus failing to meet the statutory standards. The Council countered that the notice was appropriately detailed and met the legislative criteria. The court was also required to consider the implications of any non-compliance on the enforceability of the notice.
In its judgment, the court found that the notice did not adequately specify the alleged breaches and therefore did not comply with the statutory requirements. The court held that the notice lacked the necessary particulars to inform the applicant of the precise nature of the alleged breaches, which is essential for a valid notice under the Act. Consequently, the court declared the notice invalid and granted the applicant's request for an injunction, preventing the Council from enforcing the notice. The court emphasised the importance of clear and precise notices to ensure fairness and due process in enforcement actions.
The final orders of the court were that the notice issued by Ku-ring-gai Council was declared invalid, and an injunction was granted preventing the Council from enforcing the notice. Additionally, the court ordered that the Council pay the applicant's costs associated with the proceedings. This decision underscores the necessity for local authorities to ensure that any notices issued under statutory powers are precise and fully comply with legislative requirements to avoid potential invalidation and associated legal challenges.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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