James Peter Southwell-Keely v Woollahra Municipal Council

[2017] NSWLEC 1039

Land and Environment Court

New South Wales

Medium Neutral Citation:	James Peter Southwell-Keely v Woollahra Municipal Council [2017] NSWLEC 1039
Hearing dates:	Conciliation conference on 2 February 2017
Date of orders:	03 February 2017
Decision date:	03 February 2017
Jurisdiction:	Class 1
Before:	Morris 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:	James Peter Southwell-Keely (Frist Applicant) Rivke Kuan Rebecca Deans (Second Applicant) Woollahra Council (Respondent)
Representation:	Mr C Deng McLachlan Thorpe Partners (Applicant) Mr A Hudson Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/285518
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. The Applicant is given leave to amend the development application by substituting the following plans as the plans and documents relied upon for the purposes of the section 96 modification application:

Drawing No.	Title	Prepared by	Date
15011SEC96 01 Issue B	Site Plan	CAD Plans Pty Limited	5/9/2016
15011SEC96 02 Issue B	Plans, Elevations, Section	CAD Plans Pty Limited	5/9/2016
Report prepared by Stephen Davies	Urbis Pty Limited	9/11/2016

2. The appeal is upheld.

3. Section 96 modification application DA506/2010/2 is approved to modify Development Consent DA506/2010 (the development consent) as follows:

1. Amend Condition A.3 to read as follows:

“A.3   “Approved Plans and supporting documents

Those with the benefit of this consent as modified must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp “Approved DA Plans” and the approved amended section 96 (s96) plans and documents listed below unless modified by any following condition. Where the plans relate to amendments, alterations or additions only those works shown in colour or highlighted are approved.

Reference	Description	Author/Drawn	Date(s)
LWD 000 C, LWD 001 C, LWD 002 C, LWD 003 C, LWD 004 C, LWD 005 C, LWD 006 C, LWD 007 C, LWD 008 C, LWD 009 C, LWD 010 C.	Architectural Plans	Imagineers. Imagine	4 April 2011
A93454	BASIX Certificate	Department of Planning	22 September 2010

Approved Amended s96 Plans and supporting documents

Reference	Description	Author/Drawn	Date(s)
15011 SEC96 01 Issue B	Site Plan	NAS	5/09/2016
15011 SEC96 02 Issue B	Plans, Elevations, Section

Note:    Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan.

Note:   These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate.) Standard Condition: A5”

2. Amend condition C.1 to insert new sub-paragraphs (f) and (g) as follows:

“(f) The bubble skylights shall be modified so as to be flush with the roof with    frames coloured so as to match the colour of the roof; and

(g) The side ‘wings’ of the rear dormer window shall be painted so as to match    the colour of the principal roof form.”

3. Amend condition C.3 to read as follows:

“The applicant must submit to the Certifying Authority BASIX Certificate No. A251373 with any application for a Construction Certificate.”

4. Amend condition H.1 to read as follows:

“All BASIX commitments must be effected in accordance with the BASIX Certificate No. A251373.”

5. Amend condition I.1 to read as follows.

“All BASIX commitments must be maintained in accordance with the BASIX Certificate No. A251373.”

4. As a consequence of Order 3 the development consent is now subject to the consolidated modified conditions of development consent set out in Annexure “A” to these orders.

…………….

Commissioner Morris

285518.16 Morris (C) (521 KB, pdf)