Bondi Pacific Pty Ltd v Waverley Council

[2016] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bondi Pacific Pty Ltd v Waverley Council [2016] NSWLEC 1402
Hearing dates:	Conciliation conference on 1 September 2016
Date of orders:	01 September 2016
Decision date:	01 September 2016
Jurisdiction:	Class 1
Before:	Morris 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:	Bondi Pacific Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Ms S Duggan SC (Applicant) Mr M Staunton (Respondent)   Solicitors: Baron & Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	150651/2016
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 upon the amended plans and updated acoustic report referred to in condition 1 of Appendix B set out in annexure B.

2. The applicant is to pay those costs of the respondent thrown away as a result of the applicant relying upon the amended development application as a result of order (1) above.

3. The appeal is upheld.

4. Development Application No. DA413.2015 for the use and fit-out of tenancy G/03 as a pub with capacity for 500 patrons at 180-186 Campbell Parade, Bondi Beach also known as 154 Curlewis Street, Bondi Beach is determined by approving the plans set out in Annexure “A” subject to the conditions of development consent set out in Annexure “B”.

The Court notes the agreement of the parties that the applicant is to also pay the respondents’ costs of the proceedings from 26 August 2016 which together with the costs pursuant to Order (2) above, are agreed in the amount of $5,000. Such costs to be paid within 28 days.

…………….

Sue Morris

Commissioner

150651.2016 (C) Annexure A (72.2 KB, pdf)

150651.2016 (C) Annexure B (580 KB, pdf)

150651.2016 Morris - Plans (18.7 MB, pdf)