Fryer v Woollahra Municipal Council

[2018] NSWLEC 1389

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fryer v Woollahra Municipal Council [2018] NSWLEC 1389
Hearing dates:	Conciliation conference on 23 July 2018
Date of orders:	30 July 2018
Decision date:	30 July 2018
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:	Frederic Shane Fryer (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) Solicitors: Landerer & Company (Applicant) J Hewitt, HWL Ebsworth (Respondent)
File Number(s):	2017/386542
Publication restriction:	Nil

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 amend the development application to rely upon the amended plans referred to in Condition A.2 of Annexure ‘A’ to this agreement and the amended clause 4.6 exception which is Annexure ‘B’ to this agreement.

2. The Appeal is upheld.

3. Development Application 497/2016/1 for extensive alterations and additions to an existing attached dual occupancy building incorporating a new second floor level and excavation at lower ground floor level is approved subject to the conditions set out in Annexure ‘A’ to this agreement.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (C)