Harris v Waverley Council

[2016] NSWLEC 1430

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harris v Waverley Council [2016] NSWLEC 1430
Hearing dates:	Conciliation conference on 21 July 2016
Date of orders:	20 September 2016
Decision date:	20 September 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; pool; earthworks; retaining wall; amenity; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Andrew Harris (Applicant) Waverley Council (Respondent)
Representation:	Applicant: Mr R Wilcher (Solicitor) Respondent: Mr S Patterson (Solicitor)   Solicitors: Applicant: Hicksons Lawyers Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	151987 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. Leave is granted to rely on the amended plans listed in condition 1 of the conditions set out in Annexure A.

2. The Applicant is to pay Council’s costs thrown away in the agreed amount of $500 within 14 days.

3. The appeal be upheld;

4. Development consent be granted to the development application 67/2015 the construction for a new swimming pool, deck and cabana at rear, relocation of existing retaining wall to side and rear boundaries and landscaping, and change of use of the duplex to a residential dwelling house at 30 Dellview Street Tamarama, on conditions set out in Annexure A.

________________________

Judy Fakes

Commissioner of the Court

151987.16 Annexure A (179 KB, pdf)

151987.16 LP1-3 (301 KB, pdf)

151987.16 LP4 (451 KB, pdf)