Brereton and Winkler v Council of the City of Sydney

[2018] NSWLEC 1542

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brereton & Winkler v Council of the City of Sydney [2018] NSWLEC 1542
Hearing dates:	Conciliation conference on 11 & 12 October 2018
Date of orders:	12 October 2018
Decision date:	12 October 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:	Christopher Brereton (First Applicant) Angela Winkler (Second Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: S Berveling (Respondent) Solicitors: K Doyle, Mills Oakley (Applicant) Sydney City Council (Respondent)
File Number(s):	2018/111634
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the Applicant to rely upon the amended plans set out in the Table to condition 1 in Attachment A.

2. The appeal is upheld.

3. Development application No. D/2018/134 for alterations and additions to a dwelling house including demolition of existing rear extension, internal demolition of walls and staircase, external alterations including replacement of existing windows with doors and relocation of front staircase, construction of new rear extension and excavation to provide for a car parking space is determined by approving the application subject to the conditions as set out in Attachment A.

4. Approval is granted pursuant to s. 138 of the Roads Act 1993 to demolish existing wall and construct new crossing as shown on drawing DA.02 Ground Floor Plan Rev H being part of the plans set out in condition 1 in Attachment A, subject to the conditions set out in Attachment B.

5. The Respondent's reasons for agreement to the terms of the decision are set out in Attachment C.

……………………….

S Bish

Commissioner of the Court

Attachments A - C (104 KB, pdf)

s34 Amended Plans (829 KB, pdf)