Boston Blyth Fleming v Northern Beaches Council

[2016] NSWLEC 1471

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boston Blyth Fleming v Northern Beaches Council [2016] NSWLEC 1471
Hearing dates:	Conciliation conference on 3, 27 June, 8, 11 August, 12, 20 & 27 September 2016
Date of orders:	11 October 2016
Decision date:	11 October 2016
Jurisdiction:	Class 1
Before:	Maston AC
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:	Boston Blyth Fleming (Applicant) Norhtern Beaches Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Mr A Stafford (Respondent) Solicitor: Mr A Doyle, Sattler & Associates Pty Ltd (Applicant) Ms J Munn, King & Wood Mallesons (Respondent)
File Number(s):	2016/152395
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. Leave is granted to the Applicant to rely on the following amended plans prepared by Alexander and Co dated 26 May 2016:

1. DA-A.XX.001, Issue F, Site Plan & Roof Plan;

2. DA-D.00.012, Issue F, Ground Floor- General Arrangement Plan 02;

3. DA-E.XX.001, Issue F, Overall Building-External Elevation 01.

Note: The Court notes that the parties agree that the amendments are minor for the purposes of section 97B of the Environmental Planning and Assessment Act 1979 (NSW), given that the amendments involve changes to fencing treatment only.

2. The appeal is upheld.

3. Development application No. N0183/2015 for alterations and additions and refurbishment of an existing hotel in respect of Lot 1 DP 652476, known as 2 Park Street, Mona Vale, is approved in accordance with the conditions, including deferred commencement conditions, set out in Annexure A.

…………….

Acting Commissioner Maston

Decision last updated: 12 October 2016