Burke v Woollahra Council

[2017] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burke v Woollahra Council [2017] NSWLEC 1363
Hearing dates:	Conciliation conference on 6 & 26 June 2017
Date of orders:	11 July 2017
Decision date:	11 July 2017
Jurisdiction:	Class 1
Before:	Gray 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:	Adir Burke (Applicant) Woollahra Council (Respondent)
Representation:	Counsel: Mr M Seymour (Applicant) Solicitor: Mr R Burke, Gilbert Mane Solicitors (Applicant) Mr P Rigg (Respondent)
File Number(s):	2017/53962
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant be granted leave to rely upon the following amended plans (at Annexure “B”):

Reference	Description	Author/Drawn	Date(s)
DA00.2 A Legend DA00.3 C Finishes Schedule DA01.1 D Site Plan DA02.1 B Lower Ground Plan DA02.2 B Ground Floor Plan DA02.3 D First Floor Plan DA02.5 C Roof Plan DA03.1 C South Elevation DA03.2 C North Elevation DA03.3 C East and West Elevations DA04.1 C Sections Da04.2 B Sections – Ex Ground Level	Architectural Plans	Maccormick and Associates Architects	13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017 13.06.2017
767919S	BASIX Certificate	NSW Department of Planning and Infrastructure	03.11.2016
Drawing No. s LS01-DA/A, LS02-DA/A, sheets 1 & 2	Landscape Plan	Melissa Wilson	27/10/2016
Arboricultural Impact Report	Guy Paroissien – Landscape Matrix	31/10/2016
Correspondence from Arborist	Guy Paroissien – Landscape Matrix	07/06/2017
P1605592JR01-V02	Geotechnical Report	Martens Consulting Engineer	3 February 2016
16044 DA-C3.01-Rev 02 DA-C3.02-Rev 02 DA-C5.01-Rev 02	Stormwater Plan	Dawes Consulting Engineer	27/10/16

2. The Applicant is to pay the Respondent’s costs arising under section 97B of the Environmental Planning and Assessment Act 1979 as agreed at $2,500.00 within 14 days.

3. The appeal is upheld.

4. Development Application No. DA-2016/475 received by the Respondent on 4 November 2016 for demolition of existing dwelling and garage and construction of new dwelling-house and associated landscaping works at 15 Towns Road Vaucluse (as amended), is approved subject to the conditions contained in Annexure "A".

……………………….

Commissioner Gray

53962.17 Gray (C) (306 KB, pdf)

53962.17 Gray - Amended Plans 15 Towns Rd (4.24 MB, pdf)