Cam No. 2 Pty Ltd v Northern Beaches Council

[2016] NSWLEC 1327

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cam No. 2 Pty Ltd v Northern Beaches Council [2016] NSWLEC 1327
Hearing dates:	Conciliation conference on 5 August 2016
Date of orders:	08 August 2016
Decision date:	08 August 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	MODIFICATION: modification of approval for demolition of all existing improvements and construction of a residential flat building; 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:	Cam No. 2 Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr G. McKee (Applicant) Mr Dyer (Respondent) Solicitors: McKees Legal Solutions (Applicant) Northern Beaches Council (Respondent)
File Number(s):	2016/00188437
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of an application to modify Development Application number DA297/2012 for the demolition of all existing improvements and construction of a residential flat building at 102 Bower street and 12-13 Marine Parade Manly.

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, 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. The modification application filed with the Court on 21 June 2016 in relation to Development Application number DA297/2012 relating to the land at 102 Bower Street and 12-13 Marine Parade, Manly, NSW, for the “section 96 application to modify approved Demolition of the existing buildings, construction of a five (5) storey Residential Flat Building containing six (6) units with a two (2) level car park, decks and landscaping – involving increase in lift overrun, increase in floor levels, changes to windows, new front entrance, changes of mechanical ventilation to level 3, changes to internal configurations, changes to external finishes, changes to car parking ramp – Part 3” is approved subject to the consolidated conditions set out in Annexure “A” to this agreement.

…………….

G T Brown

Commissioner

188437.16 - Annexure A (109 KB, pdf)

Amendments

11 August 2016 - Typographical error corrected on the cover sheet.