Karen Frances Anne Blackley v Lane Cove Municipal Council

[2016] NSWLEC 1654

Land and Environment Court

New South Wales

Medium Neutral Citation:	Karen Frances Anne Blackley v Lane Cove Municipal Council [2016] NSWLEC 1654
Hearing dates:	Conciliation conference on 24 January 2017
Date of orders:	25 January 2017
Decision date:	25 January 2017
Jurisdiction:	Class 1
Before:	Maston AC
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:	Karen Frances Anne Blackley (Applicant) Lane Cove Council (Respondent)
Representation:	Ms E Fleming, E J Fleming Legal (Applicant) Mr C Gough, Storey & Gough (Respondent)
File Number(s):	2016/202010
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. Council Order issued under s.121B of the Environmental Planning and Assessment Act 1979 dated 7 June 2016 shall be revoked upon the approval of a Building Certificate for the constructed retaining wall, timber deck and associated earth works at 14 Pengilly Street, Riverview.

2. Council’s Order issued under s.121B of the Environmental Planning and Assessment Act 1979 dated 7 June 2016 is stayed until the earlier of:

1. 12 January 2018; or

2. Completion of the works approved by Sydney Water on 12 January 2017 or upon confirmation such works are not required.

3. Pursuant to Section 34(3)(a) of the Land and Environment Court Act 1979, the parties request the Commissioner to dispose of these proceedings in accordance with the terms of the decision set out in paragraph 1 & 2 above.

4. The Court notes the agreement of the parties that:

1. The Respondent is to issue a Building Certificate in respect of Building Certificate Application No. BC3034 dated 17 August 2016 for the constructed retaining wall, timber deck and associated earth works at 14 Pengilly Street, Riverview upon confirmation that the works approved by Sydney Water on 12 January 2017 are either not required to be carried out or are required to be carried out and have been completed.

2. The Respondent does not press that aspect of its Order dated 7 June 2016 in relation to the concrete paved area fronting Mooramba Avenue, Riverview on account that the paved area is exempt development under the State Environmental Planning Policy (Exempt and Complying Development) 2008.

3. Each party is to pay their own costs of the proceedings.

……………………………….

Acting Commissioner J. Maston