CPDM Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:	CPDM Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1448
Hearing dates:	Conciliation conference on 11 May 2018
Date of orders:	24 August 2018
Decision date:	24 August 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning & Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	CPDM Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsels: C McEwen, SC (Applicant) M Staunton (Respondent) Solicitors: Addisons Lawyers (Applicant) Hones Lawyers Pty Ltd (Respondent)
File Number(s):	2017/333357
Publication restriction:	No

Judgment

1. COMMISSIONER: 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”.

2. 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.

3. 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.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave granted to the applicant to rely on the amended plans and documents listed in Schedule B Condition 1 of the conditions annexed and marked "A".

2. The appeal is upheld.

3. Development Application No. DA 0398/16 for:

1. stage 1 of a staged development comprising concept proposal for 43 town-houses, two new residential lots including two dwellings and a private road; and

2. the stage 1 development comprising 23 town-houses, private road, parking and landscaping works,

at 16-18 Beaconsfield Parade and 9B Gladstone Parade, Lindfield be approved in accordance with Annexure “A”.

4. The request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the floor space ratio control in clause 4.4 of the Ku-ring-gai Local Environmental Plan 2015 is upheld.

5. The applicant is to pay the Council's costs thrown away pursuant to section 8.15(3) of the Environmental Planning & Assessment Act 1979 in the amount of $25,000.00 within 28 days of the date of this agreement.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (185 KB, pdf)