Joseph Hannah v Ku-ring-gai Council

[2017] NSWLEC 1117

Land and Environment Court

New South Wales

Medium Neutral Citation:	Joseph Hannah v Ku-ring-gai Council [2017] NSWLEC 1117
Hearing dates:	Conciliation Conference on 6 October and 17 November 2016; 10 January, 18 January and 31 January 2017.
Date of orders:	07 March 2017
Decision date:	07 March 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:	Joseph Hannah (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Anthony Whealy, Mills Oakley (Applicant) Colin McFadzean, Swaab Attorneys (Respondent)
File Number(s):	2016/00205931
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 appeal is upheld;

2. the applicant is granted leave to amend the development application by relying on the following plans:

Drawing reference	Title	Prepared by	Date
A001 Rev H	Drawing List & Legend	Zanazan Architecture Studio	1/3/2017
A101 Rev Q	Plan – Site & Roof
A102 Rev U	Plan – First Floor		3/2/2017
A103 Rev U	Plan – Ground Floor		23/02/2017
A104 Rev C	Plan - Basement
A105 Rev C	Plan – Extended Ground Floor
A201 Rev K	Elevations – East & North / Section B		1/3/2017
A202 Rev K	Elevations – West & South / Section A		1/2/2017
L101 Rev I	Landscape Concept - Layout	Spirit Level Designs Pty Ltd	24/2/17
L102 Rev K	Landscape Concept - Planting

3. development application No. DA0175/16 for alterations and additions to an existing dwelling including the construction of a swimming pool and landscaping works at No. 114A Provincial Road, Lindfield is approved subject to conditions of consent set out in Annexure A;

4. pursuant to s97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is to pay those costs of the respondent thrown away as a result of amending the development application, as agreed or assessed.

…………..…………….

Jenny Smithson

Commissioner

205931.16 Smithson (C) (217 KB, pdf)