Harris v Hornsby Shire Council

[2016] NSWLEC 1401

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harris v Hornsby Shire Council [2016] NSWLEC 1401
Hearing dates:	Conciliation conference on 10 August 2016
Date of orders:	08 September 2016
Decision date:	08 September 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; subdivision; tree retention; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Martin John Harris (Applicant) Hornsby Shire Council (Respondent)
Representation:	Applicant: Mr G McKee (Solicitor) Respondent: Mr D Loether (Solicitor)   Solicitors: McKees Legal Solutions (Applicant) Bartier Perry (Respondent)
File Number(s):	150139 of 2016
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 under s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the Clause 4.6 variation Exception to Development Standards (Minimum allotment size) prepared by Minto Planning Services dated 18 August 2016.

2. The appeal is upheld.

3. Development Application No. DA 1165/2015 which was lodged with the Respondent on 14 September 2015 for the subdivision of one allotment into two lots and retention of the existing dwelling at 62 Dartford Road, Thornleigh is approved subject to the conditions contained in Annexure “A”.

___________________________

Judy Fakes

Commissioner of the Court

150139.16 Fakes (C) (262 KB, pdf)