Huanran Cai v Ku-ring-gai Council

[2016] NSWLEC 1622

Land and Environment Court

New South Wales

Medium Neutral Citation:	Huanran Cai v Ku-ring-gai Council [2016] NSWLEC 1622
Hearing dates:	Conciliation conference on 1 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Class 1
Before:	Fakes AC
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; Alterations and additions; change of use; Child care facility; acoustic impacts; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Huanran Cai (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Applicant: Mr M Staunton (Barrister) Respondent: Mr A Hudson (Solicitor)     Solicitors: Applicant: Jaku Legal Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s):	212262 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 for the Applicant to rely on the amended plans, which are the plans referred to in Condition 1of the conditions annexed at ‘A’ to this agreement.

2. The appeal is upheld.

3. Development Application No. DA0370/15 for the change of use to a child care centre including alterations and additions, landscaping works and parking is approved subject to the conditions in Annexure ‘A’.

______________________

Judy Fakes

Acting Commissioner of the Court

212262.16 Fakes (C) (5.83 MB, pdf)