Buyozo Pty Limited v Ku-ring-gai Council

[2018] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:	Buyozo Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1206
Hearing dates:	Conciliation conference on 26 February, 21 and 28 March 2018
Date of orders:	30 April 2018
Decision date:	30 April 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to create a self-storage facility - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Buyozo Pty Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) A Hudson, Solicitor (Respondent) Solicitors: Reid Vesely (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/280972
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Buyozo Pty Limited against a deemed refusal by Ku-ring-gai Council of DA No. 0122/17 for alterations and additions to the existing structures to create a self-storage facility at 3-5 West Street and 28 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. Leave is granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions attached and marked Annexure A.

2. The applicant is to pay the Council’s s97B costs agreed at $7,000 by 27 April 2018.

3. The appeal is upheld.

4. Development application No. DA 122/17 for the consolidation of three lots into one and alterations and additions to create a self-storage facility and separate commercial (retail) premises at 3-5 West Street and 28 Bridge Street, Pymble is approved subject to the conditions in Annexure A.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (124 KB, pdf)