Gardiner v Inner West Council

[2018] NSWLEC 1375

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gardiner v Inner West Council [2018] NSWLEC 1375
Hearing dates:	Conciliation conference on 20 July 2018
Date of orders:	23 July 2018
Decision date:	23 July 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	John Gardiner (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Dr J Smith (Respondent) Solicitors: S Kondilios, Hall & Wilcox (Applicant) Inner West Council (Respondent)
File Number(s):	2018/76089
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Mr Gardiner against the actual refusal of Development Application D/2017/507 by Inner West Council, for subdivision of the existing land into two lots and construction of a new two storey dwelling at 136 Darling Street, Balmain East NSW 2041.

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to rely upon amended plans as set out in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development application No. D/2017/507 (as amended) for subdivision of the existing land into two lots and construction of a new two storey dwelling at Lot 101 DP 1042416 being the land known as 136 Darling Street, Balmain East NSW 2041 is approved, subject to the conditions set out in Annexure A

……………………….

D M Dickson

Commissioner of the Court

Annexure A

Plans (4.08 MB, pdf)