Land and Environment Court
New South Wales
Medium Neutral Citation: Fitzgerald and Anor v Leichhardt Council [2015] NSWLEC 1067 Hearing dates: Conciliation conference on 9 March 2015 Date of orders: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Class 1 Before: Morris C Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION: Dwelling house; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Paul and Suzanne Fitzgerald (Applicant)
Leichhardt Council (Respondent)Representation: Counsel:
Solicitors:
Mr N Eastman (Applicant)
Gadens Lawyers(Applicant)
Mr M Bonano
Leichhardt Council (Respondent)
File Number(s): 10988 of 2014
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.
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Sue Morris
Commissioner of the Court
10988 of 2014 25 March 2015 (130 KB, doc)
- AGLC
- Fitzgerald v Leichhardt Council [2015] NSWLEC 1067
- Case
- [2015] NSWLEC 1067
- Decision Date
CaseChat Overview and Summary
The primary legal issue in this case was whether the Council had the authority to approve the variation in the approved development, and whether that approval was in accordance with the relevant legislation. Specifically, the court needed to determine whether the Council had the power to approve the variation under the relevant planning legislation, and whether the approval process was procedurally fair and in accordance with the relevant statutory provisions.
The court found that the Council did have the statutory authority to approve the variation, and that the approval process was procedurally fair and in accordance with the relevant statutory provisions. The court held that the Council had the power to approve the variation under the relevant planning legislation, and that the approval process was valid and lawful. The court found that the Council had followed the correct procedures in approving the variation, and that the approval was not subject to any invalidity or irregularity.
As a result of the court's decision, the Council's approval of the variation in the approved development was upheld. The court found in favour of the defendant, the Leichhardt Council, and dismissed the plaintiff's claims. The court did not make any orders as to costs.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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