Bellona Property Group Pty Ltd v Sutherland Shire Council

[2018] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation:	BELLONA PROPERTY GROUP PTY. LTD. v SUTHERLAND SHIRE COUNCIL [2018] NSWLEC 1023
Hearing dates:	Conciliation conference on 5 December 2017 & 18 January 2018
Date of orders:	22 January 2018
Decision date:	22 January 2018
Jurisdiction:	Class 1
Before:	Bish C
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:	BELLONA PROPERTY GROUP PTY. LTD (Applicant) SUTHERLAND SHIRE COUNCIL (Respondent)
Representation:	Solicitor: Ms J Amy, Sutherland Shire Council (Applicant) Mr G McKee, McKees(Respondent)
File Number(s):	2017/230857
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 applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”.

2. The Appeal is upheld.

3. Development Application No. 17/0326 demolition if existing dwelling and construction of 4 townhouses and 4 swimming pools is approved subject to the conditions set out in Annexure “A” to this agreement.

4. The applicant is to pay the respondent’s costs thrown away for the purpose of s97B of the Environment Planning & Assessment Act 1979, in the amount of $3,000.00 to be paid in 14 days.

……………………….

Commissioner Bish

Annexure A (301 KB, pdf)

Working Copy Survey Plan_Attachment A_Tree Protection dated 170118 (848 KB, pdf)