Ganis v Sutherland Shire Council

[2016] NSWLEC 1188

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ganis & Anor v Sutherland Shire Council [2016] NSWLEC 1188
Hearing dates:	Conciliation conference on 7-8 April, 26 April 2016
Date of orders:	23 May 2016
Decision date:	23 May 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT MODIFICATION; Deletion and amendment of deferred commencement conditions; design changes; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Frank Ganis and Mary Ganis (Applicants) Sutherland Shire Council (Respondent)
Representation:	Solicitors: Bartier Perry (Applicants) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/151690 (11142 of 2015)
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 are:

1. The Applicant is granted leave to amend Section 96(2) Modification Application dated 23 October 2015 and to rely upon the following amended plans, copies of which are behind Annexure “A”:

Plan number	Reference	Prepared by	Date
P1316 DA-02 Rev K	Beach Front Floor Plans	Contempo Architects	29 APR 2016
P1316 DA-03 Rev K	Lower Ground Floor Plans	Contempo Architects	29 APR 2016
P1316 DA-04 Rev H	Ground Floor Plans	Contempo Architects	19 APR 2016
P1316 DA-05 Rev I	Upper Floor Plans	Contempo Architects	29 APR 2016
P1316 DA-06 Rev I	Site and Roof Plans	Contempo Architects	29 APR 2016
P1316 DA-08 Rev I	East and West Elevations	Contempo Architects	29 APR 2016
P1316 DA-09 Rev I	North elevations	Contempo Architects	29 APR 2016
P1316 DA-10 Rev I	South elevations	Contempo Architects	29 APR 2016
P1316 DA-12 Rev I	Sections AA and BB2	Contempo Architects	29 APR 2016
P1316 DA-16 Rev B	External finishes	Contempo Architects	29 APR 2016
P1316 DA-20 Rev A	Lower Courtyard Sections	Contempo Architects	29 APR 2016
Job 16-065a LA 01 Rev A	DA Landscape Plan	Taylor Brammer Landscape Architect Pty Ltd	04.05.2016
SY141-046 DA011 Rev A	Drainage Layout	Van der Meer Consulting	August 2014
SY141-046 DA012 Rev A	Catchment Plan	Van der Meer Consulting	August 2014
SY141-046 DA011 Rev C	Drainage Layout	Van der Meer Consulting	04.05.2016

(2) The appeal is upheld.

(3) Section 96(2) Modification Application dated 23 October 2015 to modify Development Consent No DA14/0944 for demolition for swimming pool, alterations and additions to the existing dwelling and boatshed, construction of a new swimming pool and construction of a new garage with storage, entry portico, front fence and gate is determined by approving the modification as set out in Annexure “B”.

(4) As a consequence of order (3) above, Development Consent No 14/0944 is now subject to the consolidated, modified conditions of development consent set out in Annexure “C”.

…………….

Linda Pearson

Commissioner

151690.16 Pearson Annexure A (6.32 MB, pdf)

151690.16 Pearson_Annexure B (144 KB, pdf)

151690.16 Pearson_Annexure C (164 KB, pdf)