Kingswater Pty Ltd v Wollondilly Shire Council

[2017] NSWLEC 1735

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kingswater Pty Ltd v Wollondilly Shire Council [2017] NSWLEC 1735
Hearing dates:	Conciliation conference on 27 November 2017 and 8 December 2017
Date of orders:	18 December 2017
Decision date:	18 December 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Kingswater Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Solicitors: Mr M De Angelis (Authorised agent of the Applicant) Mr D Baird, Marsdens Law Group (Respondent)
File Number(s):	2017/211738
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 Order given by the Respondent to the Applicant dated 14 June 2017, a copy of which is annexed and marked “A”, is modified pursuant to section 121ZK(4)(b) and (c) of the Environmental Planning and Assessment Act 1979 as follows:

1. Substitute the following for item A commencing on page 2 of 4:

“A   Within ninety (90) days from the date of this Agreement between the parties being filed with the Court, complete the following:

1.   Rectify the following non-compliance fire safety issues:

(a) Remove the metal security gateway located within the first floor level hallway adjacent to the internal stairway, as to be in accordance with the Environmental Planning and Assessment Regulation 2000 cl 184 Fire exits & cl 186 Paths of travel to fire exits.

(b)   Remove the illuminated exit sign from above the doorway on the northern wall of the first floor leading to the toilets and rear balcony.

(c)   Remove the illuminated exit sign from above the doorway on the northern wall of the first floor leading to the rear balcony.

(d)   Ensure all remaining existing illuminated exit and directional signs to all required exits are operational, as to be in accordance with BCA 2016 E4.4 & AS2293.1-2005.

(e)   Ensure all existing emergency lighting is operational, as to be in accordance with BCA 2016 E4.2(c)(iv) & (d) Emergency lighting requirements.

(f)   Install Emergency lighting to internal staircase leading from the ground floor to the first floor located at the northern elevation in accordance with BCA 2016 E4.2(c)(iv) & (d) Emergency lighting requirements.

(g)   Install a new illuminated exit sign above the doorway leading to the balcony on the southern elevation of the first floor.

(h)   Remove the plywood covering from the doors leading to the balcony on the southern and western elevation of the first floor.

(i)   Remove the plywood covering from the doors with an illuminated exit sign above the doorway on the southern and western elevation of the ground floor.

(j)   Provide a slip-resistant surface to the treads of the external stairs and landings leading from the first floor to the ground floor on the western elevation of the building as to be in accordance with BCA 2016 D2.13(v) Goings and risers and D2.14(a)(ii) Landings.

2.   Submit to Council:

(a)   Final fire safety certificates (Form 15) for the essential service measures listed in the Fire Safety Schedule;

(b)   Supporting documentation (eg certificates of installation, compliance or maintenance), from suitably qualified persons, showing that the fire safety measures at the premises were checked by suitably qualified persons and detailed standards of performance applicable to the fire safety measures and;

3.   Display the attached Fire Safety Schedule in a visually prominent location within the building.

4.   Contact Council to arrange an inspection.

2. Delete the whole of item B1 and 2.”

……………………….

S Dixon

Commissioner of the Court

Annexure A (326 KB, pdf)