Daniel Younan and Associates v Inner West Council

[2016] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:	Daniel Younan & Associates v Inner West Council [2016] NSWLEC 1398
Hearing dates:	Conciliation conference on 16 August 2016
Date of orders:	16 August 2016
Decision date:	16 August 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	MODIFICATION: conditions for demolition of existing buildings and construction of a mixed use development: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Daniel Younan & Associates (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Ms S Hill, solicitor, (Applicant) Mr S Patterson, solicitor, (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/00160446
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification Application 10.2015.029.1 to modify Development Consent 10.2015.029 that granted consent for the demolition of existing buildings and construction of a mixed use development at 15-17 Hercules Street Ashfield.

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 under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Modification Application No. 10.2015.029.1 lodged with the Respondent on 3 February 2016 to modify Development Consent No. 10.2015.029 granted by the Respondent on 15 December 2015 for the demolition of an existing Commonwealth Bank building and construction of a mixed use (commercial and residential) building with basement parking and strata subdivision at 15-17 Hercules, Ashfield is determined by approving the modified conditions of development consent as set out in the consolidated conditions of consent at Annexure “A”.

…………….

G T Brown

Commissioner

160446.16 - Annexure A (177 KB, pdf)