Creel v Hawkesbury City Council

[2018] NSWLEC 1342

Land and Environment Court

New South Wales

Medium Neutral Citation:	Creel v Hawkesbury City Council [2018] NSWLEC 1342
Hearing dates:	Conciliation conference on 5 July 2018
Date of orders:	05 July 2018
Decision date:	05 July 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Silas Creel (First Applicant) Katherine Creel (Second Applicant) Hawkesbury City Council (Respondent)
Representation:	Solicitors: M Jacu, Jacu Legal (Applicants) J McCullan, Marsdens Law Group (Respondent)
File Number(s):	2017/347967 and 2018/158802
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:

In LEC Proceedings No. 2018/158802:

1. The Applicants are granted leave to amend Modification Application No. S960157/16 and rely on the plans and documents specified in condition 1 of Annexure ‘A’.

2. The appeal is upheld.

3. Modification Application No. S960157/16 is approved.

4. Development Consent No. M0808/00 granted by the Respondent on 30 June 2000 for a garage on the land at 607 Settlers Road, Lower Macdonald (Lot 72 DP 215631), is modified pursuant to section 4.55 (previously section 96) of the Environmental Planning and AssessmentAct 1979 as set out in Annexure ‘A’.

5. As a consequence of order (2)(c), Development Consent No. M0808/00 is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

In LEC Proceedings No. 2017/347967:

6. The Applicants are granted leave to amend Building Certificate Application No. BC0030/18 to be in respect of the works as proposed by the plans and documents specified in condition 1 of Annexure ‘A’;

7. In accordance with section 6.26(7) of the Environmental Planning and Assessment Act 1979, determination of Building Certificate Application No. BC0030/18 is deferred;

8. The Court directs that once the works identified as proposed by the plans and documents specified in condition 1 of Annexure ‘A’ are carried out in accordance with Development Consent No. M0808/00 as modified, and a report or certificate from a suitably qualified engineer confirming that those works have been satisfactorily carried out is provided to the Respondent, the Respondent is to issue a building certificate in respect of those works within 14 days.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (165 KB, pdf)

Annexure B (80.8 KB, pdf)

Plans (884 KB, pdf)