HRBT Enterprises v Ku ring gai Council

[2016] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:	HRBT Enterprises v Ku ring gai Council [2016] NSWLEC 1610
Hearing dates:	Conciliation conference on September 9 2016
Date of orders:	16 December 2016
Decision date:	16 December 2016
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL: conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	HRBT Enterprises Pty Ltd (Applicant) Ku ring gai Municipal Council (Respondent)
Representation:	Solicitors: Mr A Whealey Mills Oakley Lawyers (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/221483
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No DA-0592/15 for the demolition of the existing dwellings and garage; erection of 23 apartments in a four storey building with basement car parking and new landscaping at 183-185 Mona Vale Road St Ives.

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, 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 are:

1. The Applicant is granted to leave to amend its application to rely on the amended plans and documents referred to in Condition 1 of ‘Annexure A’ to this agreement;

2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondents costs thrown away as agreed or assessed.

3. The Appeal is upheld.

4. Development consent is granted to Development Application No DA-0592/15 for the demolition of the existing dwellings and garage; erection of 23 apartments in a four storey building with basement car parking and new landscaping at 183-185 Mona Vale Road St Ives, subject to the conditions annexed to this Agreement at “Annexure A”.

…………….

D M Dickson

Commissioner of the Court

221483.16 Dickson (C) (390 KB, pdf)