Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Kirzner v Manly Council [2015] NSWLEC 1220 Hearing dates: Conciliation conference on 19 May 2015 Date of orders: 22 June 2015 Decision date: 22 June 2015 Jurisdiction: Class 1 Before: Morris 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: Aleksandr Kirzner (Applicant)
Manly Council (Respondent)Representation: Counsel:
Marc Jaku (Applicant)
Shneider Steven (Respondent)
Solicitors:
Jaku Legal (Applicant)
Houston Dearn O’Connor (Respondent)
File Number(s): 10055 of 2015
Judgment
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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”.
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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.
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In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.
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Commissioner Morris
10055 of 2015 Morris (O) Amended_orders (151 KB, pdf)
Amendments
23 June 2015 - Amended Orders
- AGLC
- Kirzner v Manly Council [2015] NSWLEC 1220
- Case
- [2015] NSWLEC 1220
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Manly Council was entitled to enforce the planning condition to demolish the shed. This involved a consideration of the statutory framework governing development permits and planning conditions, specifically the Environmental Planning and Assessment Act 1979 (NSW), and the circumstances in which a council could enforce such conditions. A secondary issue was whether the council's delay in taking action to enforce the condition constituted a waiver of its rights to do so.
In delivering the judgment, the court first examined the statutory provisions and found that Manly Council had the authority to enforce planning conditions attached to development permits. The court rejected Mr Kirzner's argument that the council's delay in taking action constituted a waiver of its enforcement rights. The court held that the council's right to enforce the condition was not dependent on timely action and that the delay did not affect the council's statutory powers. Consequently, the court ruled in favour of Manly Council, affirming its right to enforce the condition for the demolition of the shed.
The court ordered that Mr Kirzner must comply with the planning condition by demolishing the shed within the specified period. The court also found that Mr Kirzner should bear the costs of the proceedings, as the council's action to enforce the condition was justified. This decision underscored the importance of adhering to planning conditions attached to development permits and the council's role in enforcing such conditions to ensure compliance with planning laws.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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