DEP Warriewood no. 2 Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1193

Land and Environment Court

New South Wales

Medium Neutral Citation:	DEP Warriewood no. 2 Pty Ltd v Northern Beaches Council [2017] NSWLEC 1193
Hearing dates:	Conciliation on 27 March, 4 and 6 and 11 April 2017
Date of orders:	13 April 2017
Decision date:	13 April 2017
Jurisdiction:	Class 1
Before:	Chilcott 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:	DEP Warriewood No 2 Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	M Sonter, Mills Oakley (Applicant) A Bond, King and Wood Mallesons (Respondent)
File Number(s):	2017/22807
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 appeal is upheld.

2. The Applicant is granted leave to rely on the amended plans listed in condition A1 of Annexure “A” to this agreement.

3. Development Application N0460/16, as amended pursuant to paragraph 2 above, for the construction of a residential flat building on a yet to be created lot (Lot 21) approved pursuant to Development Application N0540/15, at 10 Fern Creek Road, Warriewood (Lot 6 in Deposited Plan 736961), is approved subject to the conditions set out in Annexure “A” to this agreement.

4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant shall pay the Respondent’s costs that are thrown away as a result of amending Development Application N0460/16 in the sum of $11,850.00 all inclusive, such costs to be paid within 14 days of these orders.

…………….

Michael Chilcott

Commissioner of the Court

22807.17 Annexure A (C) (99.7 KB, pdf)

22807.17 Plans (4.73 MB, pdf)

Decision last updated: 13 April 2017