Charalambous v Waverley Council

[2016] NSWLEC 1387

Land and Environment Court

New South Wales

Medium Neutral Citation:	Charalambous v Waverley Council [2016] NSWLEC 1387
Hearing dates:	Conciliation conference on 2 August 2016
Date of orders:	02 September 2016
Decision date:	02 September 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	Appeal under s97(3) against deferred commencement development consent - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Costa Charalambous (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: Mr. Conomos, Conomos Legal (Applicant) Mr. Paterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/00161845
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97 (3) of the Environmental Planning and Assessment Act 1979, against a deferred commencement consent for alterations and additions to an existing residential flat building at 10 Moore St Bondi [DA 470/2015].

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 are:

1. The Applicant is granted leave to rely upon the plans the following amended plans, as set out in operational Condition 1 in Annexure A:

1. A01 Issue B dated 5 August 2016;

2. A02 Issue B dated 5 August 2016;

3. A05 Issue B dated 5 August 2016;

4. A06 Issue B dated 5 August 2016;

5. A07 Issue B dated 5 August 2016;

6. A08 Issue B dated 5 August 2016;

7. A09 Issue B dated 5 August 2016;

8. A10 Issue B dated 5 August 2016;

9. A11 Issue B dated 5 August 2016;

10. A23 Issue B dated 15 August 2016;

2. The request submitted pursuant to clause 4.6 of Waverley Local Environmental Plan 2012 (WLEP) with respect to the floor space ratio standard set out in clause 4.4 of WLEP is considered to be well founded and is upheld.

3. The applicant is to pay the respondents costs thrown away for the purpose of s97B of the Environmental Planning and Assessment Act 1979 in the agreed amount of $1,000 within 14 days.

4. The appeal is upheld.

5. Development Consent is granted to development application number DA 470/2015, for the alterations and additions to an existing residential flat building at 10 Moore St Bondi, subject to the conditions in Annexure A.

…………….

D M Dickson

Commissioner

161845.16 - Annexure A (165 KB, pdf)

161845.16 - Plans (5.96 MB, pdf)