Coles Group v Newcastle City Council

[2016] NSWLEC 1543

Land and Environment Court

New South Wales

Medium Neutral Citation:	Coles Group v Newcastle City Council [2016] NSWLEC 1543
Hearing dates:	Conciliation conference on 30 August 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [6] below
Catchwords:	Appeal under s97(2) against deemed refusal of development application; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Roads Act 1993 (NSW)
Category:	Principal judgment
Parties:	Coles Group Property Developments Pty Ltd (Applicant) Newcastle City Council (Respondent)
Representation:	Solicitors: Ms. Rourke,F Norton Rose Fullbright (Applicant) Mr Marshall,J, Newcastle Council (Respondent)
File Number(s):	2016/162072
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(2) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of a development application Da2015/10005. The application is seeking demolition of dwellings and outbuildings, five lot subdivision, erection of two storey retail and associated site works, parking and signage at 61-83 Maitland Rd, Mayfield.

2. Following lodgement of the appeal the development application was approved by Newcastle City Council (16 August 2016) and the conciliation focussed on the conditions of the approval.

3. 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”.

4. 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.

5. 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.

6. The final orders to give effect to the parties’ agreement are:

1. The appeal is upheld

2. Development Consent is granted to development application number Da 2015/10005, for demolition of dwellings and outbuildings, five lot subdivision, erection of two storey retail and associated site works, parking and signage at 61-83 Maitland Rd, Mayfield., subject to the conditions in Annexure A.

3. Approval is granted under Part 8 Division 2 of the Roads Act 1993 (NSW) for the proposed road improvement works in Maitland Road, Mayfield, pursuant to s39(2) of the Land and Environment Court Act 1979 (NSW).

…………….

D M Dickson

Commissioner of the Court

162072.16 Dickson (C) (256 KB, pdf)