Bunnings Properties Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1204

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bunnings Properties Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1204
Hearing dates:	Conciliation conference on 31 January and 20 April 2018
Date of orders:	20 April 2018
Decision date:	20 April 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	MODIFICATION: modification of condition of development consent relating to developer contribution; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Bunnings Properties Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Ms Felicity Rourke, Allens (Applicant) Mr Christopher Drury, Sparke Helmore (Respondent)
File Number(s):	2017/266642
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application by Bunnings Properties Pty Ltd seeking modification by the Court of Development Consent No. DA115/15 granted by Commissioner Brown in Bunnings Properties Pty Ltd v Ku-ring-gai Council (No.4) [2017] 1238 on 16 May 2017, by the deletion of condition 51. The development consent authorises on conditions the demolition of all existing structures, tree removal, earthworks, road widening, driveway access from Ryde Road, signage, landscaping, the consolidation of titles, retaining walls and construction of a building and its use for the sale of hardware and building supplies at 950-950A Pacific Highway and 2 Bridge Street, Pymble.

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Pursuant to s96(8) of the Environmental Planning and Assessment Act 1979, Development Consent DA0115/15 is modified by amending condition 51 of the conditions of consent which form 'Annexure A' of development consent DA0115/15 made by the Court on 16 May 2017, as set out in Annexure "A".

……………………….

Graham Brown

Commissioner of the Court

Annexure A (263 KB, pdf)