Duchini Architecture Pty Limited v Hunters Hill Council

[2016] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:	Duchini Architecture Pty Limited v Hunters Hill Council [2016] NSWLEC 1634
Hearing dates:	Conciliation conference on 8 October, 21 November, 16 and 22 December 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Jurisdiction:	Class 1
Before:	Morris 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:	Duchinin Architecture Pty Limited (Applicant) Hunters Hill Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant)   Solicitors: Mr M Grew (Applicant) Mr J Cole HWL Ebsworth Lawyers (Respondent)
File Number(s):	208882/2016
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, 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 to leave to amend its application to rely on:

1.    The plans and documents referred to in General Condition 2 of Annexure "A";

2.    The clause 4.6 objection prepared by Andrew Martin Planning dated November 2016.

2. The applicant is to pay Council's costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the amount of $10,000.00 within 28 days.

3. The Appeal is upheld.

4. Approval is granted to Development Application No. 2015-1213 for the demolition of the existing single storey interwar shop front building on the site and the construction of a shop top housing development totalling 3 storeys, comprising a new ground floor café and parking for three vehicles and 2 levels of residential units, comprising 1 x two bedroom unit, and 3 x one bedroom units.

…………….

Sue Morris

Commissioner

208882.2016 (C Annexure A) (519 KB, pdf)