Lenga v Waverley Council

[2018] NSWLEC 1320

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lenga v Waverley Council [2018] NSWLEC 1320
Hearing dates:	Conciliation conference on 14 May, 25 June 2018
Date of orders:	27 June 2018
Decision date:	27 June 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mark Lenga (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall & Wilcox (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/348621
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Mark Lenga against the actual refusal by Waverley Council of Development Application DA-288/2017, for the demolition of the existing dwelling and garage and construction of three (3) x three (3) storey townhouses with basement parking and swimming pool at 2 Princess Street, Rose Bay, NSW 2029.

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure A.

2. The appeal is upheld and Development Application DA-288/2017, for the demolition of the existing dwelling and garage and construction of three (3) townhouses with basement parking and swimming pool at 2 Princess Street, Rose Bay, NSW 2029, is approved, subject to the conditions set out in Annexure A.

3. The Applicant is to pay the Respondents costs as agreed pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 7 days, and if not agreed, then as assessed.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (218 KB, pdf)

Decision last updated: 27 June 2018