Chris Heyer Promotions Pty Ltd v Tweed Shire Council

[2017] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chris Heyer Promotions Pty Ltd v Tweed Shire Council [2017] NSWLEC 1583
Hearing dates:	Conciliation conference on 30 May 2017
Date of orders:	16 October 2017
Decision date:	16 October 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures 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:	Chris Heyer Promotions Pty Ltd (Applicant) Tweed Shire Council, solicitor (Respondent)
Representation:	Mr I Hemmings SC (Applicant) Mr S Patterson (Respondent) Solicitors: Mills Oakley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/00011078
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development application no. DA16/0527 for demolition of existing structures, earthworks and construction of a residential flat building at 204 Marine Parade, Kingscliff NSW.

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 Applicant is granted leave to rely on the amended plans and documents as referred to in the conditions of consent contained in Annexure “A” and included at Annexure “B”.

2. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the agreed amount of $5000 within 28 days of the making of these orders.

3. The appeal is upheld.

4. Development application no. DA16/0527 for demolition of existing structures, earthworks and construction of a residential flat building at 204 Marine Parade, Kingscliff NSW is approved subject to the condition in Annexure “A” hereto.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (C) (282 KB, pdf)

Plans (3.33 MB, pdf)