John Anderson v Inner West Council

[2017] NSWLEC 1718

Land and Environment Court

New South Wales

Medium Neutral Citation:	John Anderson v Inner West Council [2017] NSWLEC 1718
Hearing dates:	Conciliation conference on 30 November, 15 December 2017
Date of orders:	14 December 2017
Decision date:	14 December 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	John Anderson (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr I Hemmings (Applicant) Solicitors: Ziman and Ziman Solicitors (Applicant) Mr M Bonanno, Inner West Council (Respondent)
File Number(s):	2017/227669
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97AA of the Environmental Planning and Assessment Act 1979, against Council’s refusal of modification application M/2016/274. The amendment application seeks approval to modify an existing approval for the site. The modifications centre on the treatment of the rear elevation and verandah of the dwelling at 16 Clifton Street, Balmain East.

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 make, 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 under s34(3) of the Land and Environment Court Act 1979 are:

1. Appeal upheld;

2. Section 96 application number M/2016/274 to modify Development Consent No. D/2015/415 which approved alterations and additions to existing dwelling including first floor and lower level self-contained secondary dwelling at 16 Clifton Street, Balmain East is determined by approving the modifications as set out in “Annexure A”.

3. As a consequence of order (2), Development Consent No. D/2015/415 is now subject to the consolidated, modified conditions of development consent set out in “Annexure B”.

4. Each party pays its own cost.   

……………………….

Commissioner DM Dickson

Annexure A (C)

Annexure B (C-consol.)