DPG Project 8 Pty Ltd v Ku-ring-gai Council

[2017] NSWLEC 1169

Land and Environment Court

New South Wales

Medium Neutral Citation:	DPG Project 8 Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1169
Hearing dates:	Conciliation Conference on 21 December 2016, 7 and 8 and 28 February 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Class 1
Before:	Smithson 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:	DPG Project 8 Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Dr S Berveling (Applicant) Solicitors: T Flaherty, Mills Oakley (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/275749
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 granted leave to rely on the amended plans and documents referred to in Condition 1 at “Annexure A” to this agreement.

2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs that are thrown away as a result of the amendments agreed at $7,000.00 which, to be paid by 5.00pm on 14 March 2017.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA0323/16 for the demolition of existing building and construction of a residential flat development consisting of 52 units, basement parking and landscaping works at the property known as 1496 Pacific Highway, Warrawee NSW 2074, subject to the conditions annexed to this Agreement at “Annexure A”.

…………….

Jenny Smithson

Commissioner

275749.16 Smithson (C) (224 KB, pdf)

275749.16 Plans (10.2 MB, pdf)