Dong v Ku-ring-gai Council

[2018] NSWLEC 1555

Land and Environment Court

New South Wales

Medium Neutral Citation:	Dong v Ku-ring-gai Council [2018] NSWLEC 1555
Hearing dates:	Conciliation conference on 31 July 2018; 16 & 28 August 2018; 2 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Class 1
Before:	Adam AC
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: seniors housing development; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Michael Dong (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) L Finn, Hones Lawyers Pty Ltd (Respondent)
File Number(s):	2018/54701
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. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure "A" to this agreement.

2. The applicant is to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $10,000.00 in full and final payment of costs, within 21 days of the Court making these orders.

3. The Appeal is upheld.

4. Development Application DA0608/17 for the demolition of the existing structures and construction of a seniors housing development comprising 10 dwellings and associated works at 46 Fox Valley Road, Wahroonga, NSW is approved subject to the conditions set out in Annexure "A" to this agreement.

……………………….

P Adam

Acting Commissioner of the Court

Annexure A (206 KB, pdf)

Amended plans (3.49 MB, pdf)

Decision last updated: 22 October 2018