Bryson v North Sydney Council

[2020] NSWLEC 1587

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bryson v North Sydney Council [2020] NSWLEC 1587

Hearing dates:

Conciliation conference on 20 November 2020

Date of orders:

26 November 2020

Decision date:

26 November 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The order be varied in accordance with the terms set out in the amended order and plan annexed hereto and marked “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Texts Cited:

Land and Environment Court of New South Wales COVID-19 Pandemic Arrangements Policy (July 2020)

Category:

Principal judgment

Parties:

Richard Bryson (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
C Sorensen (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Hall & Willcox (Respondent)

File Number(s):

2019/316133

Publication restriction:

No

Judgment

1. COMMISSIONER: Richard Bryson (the Applicant) has appealed the decision of North Sydney Council (the Respondent) to issue a Development Control Order under s 9.34, Sch 5 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The terms of the Development Control Order is in two parts:

1. Development Control Order No. 1 requires that the Applicant cease the use of a property at 1/9 Tobruk Ave, Cremorne (the Subject Site) as a dual occupancy; and

2. Development Control Order No. 11 requires that the Applicant should reinstate the internal layout of the Subject Site in accordance with a Complying Development Certificate (2015-CDC) issued by DK Building Certifiers dated 8 January 2003 by undertaking certain specified works.

2. The appeal comes to the Court pursuant to s 8.18 of the EP&A Act and falls within Class 1 of the Court’s jurisdiction. The proceedings are determined pursuant to the provisions of s 8.18(4) of the EP&A Act.

3. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 20 November 2020, and I presided over that conciliation conference.

4. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy), and no site view was undertaken during the conference.

5. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. There are no jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 8.18(4) of the EP&A Act.

8. I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

9. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties’ decision.

10. 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.

11. The Court orders that:

1. The appeal is upheld.

2. The order be varied in accordance with the terms set out in the amended order and plan annexed hereto and marked “A”.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (140960, pdf)

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Decision last updated: 26 November 2020