Boston Blyth Fleming v Northern Beaches Council

[2017] NSWLEC 1689

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boston Blyth Fleming v Northern Beaches Council [2017] NSWLEC 1689
Hearing dates:	Conciliation conference on 1 December 2017
Date of orders:	01 December 2017
Decision date:	01 December 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	MODIFICATION APPLICATION - application to the Court to modify court granted consent – signage package - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Boston Blyth Fleming (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: Mr Sattler, Sattler & Associates (Applicant) Ms Bond, King & Wood Mallesons (Respondent)
File Number(s):	2017/258134
Publication restriction:	No

Judgment

1. COMMISSIONER: This matter concerns an application made to the Court pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979 to modify development consent granted by the Court with respect to refurbishment of an existing hotel at 2 Park Street, Mona Vale. At 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 rely on the amended plans referred to in the conditions set out in Annexure A.

2. The application is upheld.

3. Pursuant to section 96(8) of the Environmental Planning and Assessment Act 1979 (NSW), the development consent granted by the Court in proceedings 2016/152395 for refurbishment of an existing hotel at 2 Park Street, Mona Vale is modified in accordance with the conditions set out in Annexure A.

……………………….

Commissioner Gray

Annexure A (426 KB, pdf)