Elmetsalem v Canterbury-Bankstown Council

[2017] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elmetsalem v Canterbury-Bankstown Council [2017] NSWLEC 1274
Hearing dates:	Conciliation conference on 26 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	APPEAL – development application - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 s34
Category:	Principal judgment
Parties:	Radwan Elmetsalem (Applicant) City of Canterbury Bankstown Council (Respondent)
Representation:	Solicitor: Mr T Flaherty, Mills Oakley (Applicant) Mr K McLellan, Marsdens Law Group (Respondent)
File Number(s):	2016/326964
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 upon the amended plans referred to in condition 1 of Annexure “A”.

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 97B(2) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $11,000.00.

3. The appeal is upheld.

4. Development Application No. DA-265/2016 (as amended) which was lodged with the Respondent on 24 June 2016 for demolition of existing structures and construction of a mixed use development comprising a ground floor medical centre and pharmacy, car parking and residential apartments above at 1-7 Haldon Street, Lakemba is approved subject to the conditions contained in Annexure "A".

……………………….

Joanne Gray

Commissioner of the Court

326964.16 Gray (C) (346 KB, pdf)

326964.16 Gray - Plans (7.94 MB, pdf)