Light Brigade Properties Pty Ltd v Woollahra Council

[2018] NSWLEC 1011

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Light Brigade Properties Pty Ltd v Woollahra Council [2018] NSWLEC 1011
Hearing dates:	Conciliation conference on 10 November, 1 & 20 December 2017
Date of orders:	12 January 2018
Decision date:	12 January 2018
Jurisdiction:	Class 1
Before:	Martin SC
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:	Light Brigade Properties Pty Ltd (Applicant) Woollahra Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Solicitors: Jaku Legal (Applicant) Mr S Simington, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/202008 & 2017/202019
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:

In appeal No. 2017/202008:

1. The Applicant is granted leave to amend Modification Application No. 33/2015/2 in accordance with the plans and documents specified in condition A.3(a) of Annexure ‘A’.

2. The appeal is upheld.

3. Modification Application No. 33/2015/2 to modify Development Consent No. DA33/2015 to facilitate works at roof level and level two of the Light Brigade Hotel, located at 2A Oxford Street, Woollahra (Lot 1 DP 178745 and Lot 1 DP176198), in accordance with the plans identified in order (1), is approved subject to the conditions set out in Annexure ‘A’.

4. As a consequence of order (3), Development Consent No. DA33/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

In appeal No. 2017/202019:

5. The Applicant is granted leave to amend Building Certificate Application No. 24/2016 to be in respect of the works as proposed by the plans and documents specified in condition A.3(a) of Annexure ‘A’.

6. In accordance with section 149D(5) of the Environmental Planning and Assessment Act 1979, determination of Building Certificate Application No. 24/2016 is deferred.

7. The Court directs that once the works identified as proposed by the plans and documents specified in condition A.3(a) of Annexure ‘A’ are carried out in accordance with Development Consent No. DA33/2015 as modified, the Respondent is to issue a building certificate in respect of those works.

……………………………

Senior Commissioner Martin

Annexure A & Annexure B(C)

Annexure C (Plans)

Amendments

12 January 2018 - Orders rearranged to accurately reflect the terms of the as-filed s34 agreement.

15 January 2018 - Order (3) amended to correctly reference order (1).