Fenech v The Council of the City of Sydney

[2016] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fenech v The Council of the City of Sydney [2016] NSWLEC 1530
Hearing dates:	Conciliation conference on 31 October 2016
Date of orders:	09 November 2016
Decision date:	09 November 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:	Yue Ping Fenech (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: Mr M Cottom HWL Ebsworth Lawyers (Applicant) Mr T Ward The Council of the City of Sydney (Respondent)
File Number(s):	184610/2016 and 292049/2016
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:

5. In Matter No. 18410/2016:

1. The appeal is upheld.

2. Pursuant to section 121ZK(4)(c) of the Environmental Planning and Assessment Act 1979, the order issued by the respondent dated 18 May 2016 is substituted by an order in the terms set out in Annexure A.

6. In Matter No. 292049/2016:

1. The appeal is upheld;

2. Pursuant to section 149F(3)(a) of the Environmental Planning and Assessment Act 1979, the respondent is direct to issue a building certificate forthwith upon the applicant complying with the order substituted by the Court for the respondent’s order dated 18 May in the final orders made by the Court in related proceedings 184610 of 2016.

………………..

Sue Morris

Commissioner

184610.16 & 292049.16 - Annexure A (356 KB, pdf)