Klaric v Mosman Municipal Council

[2016] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:	Klaric & anor v Mosman Municipal Council [2016] NSWLEC 1516
Hearing dates:	Conciliation conference on 27 October 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	See (4) below
Catchwords:	COUNCIL ORDER: appeal against council’s s 121B order; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Robert and Leonie Klaric (Applicants) Mosman Municipal Council (Respondent)
Representation:	Counsel: Mr C. McEwen SC.(Applicant) Ms A. Hemmings barrister (Respondent)   Solicitors: Wilshire Webb Staunton Beattie (Applicant) Pikes & Verekers Lawyers (Respondent)
File Number(s):	2016/154212

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, 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 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.

1. The appeal is upheld.

2. The Court orders that the order issued by the Respondent to the Applicants dated 14 January 2016 in terms of order No. 16 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the premises described as 69 Parriwi Road, Mosman, a copy of which is attached as Annexure A to these Orders, is modified by the substitution of the following order:

To do what:

A.    By 20 July 2018 complete the development authorised by the Land and Environment Court of New South Wales in appeal number 11090 of 2006, as modified by:

1. The Land and Environment Court of New South Wales in appeal number 11090 of 2006 (section 96);

2. Section 96 modification 8.2006.21.3 issued by Council on 21 May 2009; and

3. The Land and Environment Court of New South Wales in appeal number 10158 of 2014 (section 96) (“the approved development”).

B.    Complete the following “Key Project Milestones” in accordance with the details for each milestone set out in the Construction Program to Completion, Print Date 26 October 2016, which is attached as Annexure B to these Orders by the dates set out below:

Key Project Milestones	Completion Date
First floor slab complete (Item 4)	3 March 2017
Observatory level slab complete (Item 5)	16 June 2017
Roofing, cladding and façade finishes complete (Item 7)	8 December 2017
First floor level internal finishes complete (Item 10) and crane removal	25 May 2018
Project Complete (Gross)/ Practical Completion (Item 13)	20 July 2018

Period for compliance

As per Orders 2A and 2B above.

3. The parties be granted liberty to apply to the Court on 3 days notice for the purpose of amending the Completion Date of any of the Key Project Milestones on proper cause being shown.

4. The Applicants are to remove any surveillance cameras located on 69 Parriwi Road or on the crane on Council land which overlook neighbouring properties.

5. No order as to costs.

…………….

Susan O’Neill

Commissioner

154212.16 - Annexure A (45.5 KB, pdf)

154212.16 O'Neill Annexure B (1.25 MB, pdf)