Goldberg v Waverley Council

[2018] NSWLEC 1346

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Goldberg v Waverley Council [2018] NSWLEC 1346
Hearing dates:	Conciliation conference on 4 – 5 July 2018
Date of orders:	05 July 2018
Decision date:	05 July 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	MODIFICATION APPLICATION – residential development - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Suzanne Goldberg (Applicant) Waverley Council (Respondent)
Representation:	Counsel: S Nash (Applicant) Solicitors: A Boskovitz, Boskovitz Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/42373
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Suzanne Goldberg against the deemed refusal by Waverley Council of Modification Application DA561/2016/A for modifications to the development consent granted for the construction of a three storey attached dual occupancy at 51 Lancaster Road, Dover Heights (Lot A DP 102084). The modification application seeks to make alterations to the balcony and the basement. The previous development was approved by this Court on 7 November 2017.

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. The Applicant is granted leave to rely on the amended plans and documents set out at Annexure “A” and as referred to in condition A1 of the conditions of consent set out in Annexure “B” and Annexure “C”.

2. The appeal is upheld.

3. Modification Application No. DA561/2016/A which seeks to modify Development Consent No. DA561/2016 granted by the Land and Environment Court in Proceedings No. 119427 of 2017 for the demolition of the existing building and construction of an attached dual occupancy at 51 Lancaster Road, Dover Heights, NSW is approved subject to the conditions contained at Annexure “C”.

……………………….

Commissioner Gray

Annexure A Amended (2.26 MB, pdf)

Annexure B (271 KB, pdf)

Annexure C (479 KB, pdf)

Amendments

14 August 2019 - By consent and pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, Annexure A to the orders of 5 July 2018 is varied to substitute plan numbers 0.04 Revision B and 1.00 Revision E with plan number 1.05 Revision D

Decision last updated: 14 August 2019