Ionic Management Pty Ltd v Sutherland Shire Council

[2017] NSWLEC 1710

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ionic Management Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1710
Hearing dates:	Conciliation conference on 19 October, 1 and 15 November, 6 and 8 December 2017
Date of orders:	11 December 2017
Decision date:	11 December 2017
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:	Ionic Management Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: Mr A Galasso, SC (Applicant) Mr M Stanton (Respondent) Solicitors: HWL Ebsworth (Applicant) Sutherland Shire Council (Respondent)
File Number(s):	2017/190921
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 make, 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 upon the amended plans referred to in condition 3 of Annexure A.

2. The applicant is to pay the Council’s costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the amount of $1.

3. The appeal is upheld.

4. Approval is granted to DA16/1668 for demolition of existing structures and construction of mixed use commercial development including Woolworths supermarket, Dan Murphy’s liquor store, commercial tenancies, child care centre, road widening/upgrade works, parking, signage and associated facilities at 24 – 38 Flora Street, Kirrawee subject to the conditions at Annexure A.

……………………….

Commissioner Jenny Smithson

Annexure A (C)