Karakatis Holdings Pty Ltd v Inner West Council

[2017] NSWLEC 1166

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karakatis Holdings Pty Ltd and anor v Inner West Council [2017] NSWLEC 1166
Hearing dates:	Conciliation conference on 21 March 2017
Date of orders:	31 March 2017
Decision date:	31 March 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: modification to existing consent - conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Karakatsis Holdings Pty Ltd (First Applicant) Nikki Beach One Pty Ltd (Second Applicant) Inner West Council (Respondent)
Representation:	Solicitor: Mr A Knox, Pikes & Verekers Lawyers (Applicants) Ms S Puckeridge, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/357292
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification Application 2016/357292 to the approval for alterations and additions to an existing building to be used as a residential flat building at 65 Johnston Street Annandale.

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. The Applicant is required to amend Modification Application 2016/357292 by deleting the application for the construction of a vehicular access driveway and sidewalk crossover at the Johnston Street frontage;

2. The appeal is upheld;

3. Modification application 2016/357292 to DA D/2015/628 for the addition of 3rd storey loft rooms to units 1 & 3 and the installation of 18 skylights is approved subject to the modified conditions of development consent contained in Annexure A;

4. The Applicant is to pay the Respondent’s s97B costs as agreed or assessed.

……………………….

Commissioner Brown

357292.16 Brown (C) (125 KB, pdf)