Debb Investments Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1027

Land and Environment Court

New South Wales

Medium Neutral Citation:	Debb Investments Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1027
Hearing dates:	Conciliation conference on 24 January 2018
Date of orders:	25 January 2018
Decision date:	25 January 2018
Jurisdiction:	Class 1
Before:	Dickson 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:	Debb Investments PTY LTD ABN: 41 527 069 347 (Applicant) Ku-ring-gai City Council ABN: 86 408 856 411 (Respondent)
Representation:	Solicitor: Pierre Saab, Macquarie Lawyers (Applicant) Christopher Shaw, Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/243517
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Drawing No.	Prepared By	Dated
Landscape Plan – Drawing No 1/ 2 - Additional Screening Basement (Final – Revision 4)	Tessa Rose	22 September 2017
Landscape Plan – Drawing No 2/ 2 - Additional Screening Ground (Final – Revision 4)	Tessa Rose	22 September 2017
Architectural Plan – Proposed Site Plan DA01-E	Robertson Marks	24 January 2018
Architectural Plan – Proposed External Finishes DA12-B	Robertson Marks	15 May 2017
Document(s)	Prepared By	Dated
Bushfire Risk Assessment Certificate (3 pages)	Scott Jarvis	23 September 2017

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA0631/16 for the demolition of existing dwelling and pool, construction of new child care centre and associated landscaped outdoor areas, basement parking and new driveway, on the land described in Lot 2 DP 22344, with a street address of 6 Eastern Arterial Road, St Ives, subject to the conditions of consent annexed hereto and marked ‘Annexure A’.

4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs in the amount of $7000.00 to be paid within 7 days of this section 34 agreement.

……………………….

Commissioner Dickson

Annexure A (384 KB, pdf)