Levy v The Council of the City of Sydney

[2018] NSWLEC 1223

Land and Environment Court

New South Wales

Medium Neutral Citation:	Levy v The Council of the City of Sydney [2018] NSWLEC 1223
Hearing dates:	Conciliation conference on 16 April 2018 and 7 May 2018
Date of orders:	16 May 2018
Decision date:	16 May 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	MODIFICATION: modification of a condition of development consent for additional trading hours; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Marcus Levy (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitor: D Manca, LAS Lawyers & Consultants (Applicant) P Canning, The Council of the City of Sydney (Respondent)
File Number(s):	2017/356072
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of an application to modify development consent D/2002/420 by amending condition 3 to permit extended trading hours and amending condition 24, Plan of Management, for 360-370 Elizabeth Street, Surry Hills.

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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Development application D/2002/420/C lodged on 21 August 2017 to modify development consent D/2002/420 by amending condition 3 to permit extended trading hours and amending condition 24, Plan of Management, for 360-370 Elizabeth Street, Surry Hills, is approved subject to the conditions contained in Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (149 KB, pdf)