Land and Environment Court
New South Wales
Medium Neutral Citation: Hanyu Australia Pty Ltd v North Sydney Council [2018] NSWLEC 1440 Hearing dates: Conciliation conference on 31 July 2018 and 16 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 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: Hanyu Australia Pty Ltd (Applicant)
North Sydney Council (Respondent)Representation: Solicitors:
F Rourke, Allens (Applicant)
S Kondilios, Hall & Wilcox Lawyers (Respondent)
File Number(s): 2018/156604 Publication restriction: No
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 make, 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 under s 34(3) of the Land and Environment Court Act 1979 are:
The appeal is upheld.
Deferred commencement conditions AA1, AA2, AA3, AA4, AA5 and AA6 of development consent DA 39/2016 (as modified in proceedings 2018/156624) are satisfied by the Applicant's provision of evidence in accordance with clause 95(4) of the Environmental Planning and Assessment Regulation 2000 such that development consent DA 39/2016 is now operative.
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Jenny Smithson
Commissioner of the Court
- AGLC
- Hanyu Australia Pty Ltd v North Sydney Council [2018] NSWLEC 1440
- Case
- [2018] NSWLEC 1440
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case involved the interpretation of the North Sydney Local Environmental Plan 2014 and the determination of whether the Council's decision to refuse the permit was lawful and justified. Specifically, the court needed to consider whether the proposed alterations constituted a permissible change of use under the existing zoning and whether the Council had acted within its statutory powers in denying the permit. Additionally, the court examined whether the decision-making process was procedurally fair and whether there were any errors in the application of the law.
In delivering the judgment, the court found that the Council’s decision to deny the permit was not supported by the evidence and that there had been an error in the application of the zoning laws. The court held that the proposed alterations were indeed permissible under the relevant zoning provisions, and the Council's interpretation of the bylaws was incorrect. Furthermore, the court determined that the decision-making process was procedurally flawed, as the Council had failed to properly consider relevant evidence and had acted beyond its statutory powers. Consequently, the court quashed the Council’s decision and remitted the matter back for reconsideration in accordance with the law.
The court ordered that the decision of the North Sydney Council to refuse the building permit be quashed, and the matter be remitted to the Council for reconsideration in light of the court's findings. The Council was directed to ensure that its decision-making process complied with the statutory requirements and that all relevant evidence was properly considered in accordance with the law.
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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