Lim v Inner West Council

[2018] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lim v Inner West Council [2018] NSWLEC 1579
Hearing dates:	Conciliation conference on 2 November 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Class 1
Before:	Walsh 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:	Pai Hong Lim (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: P Rigg, Peter R Rigg (Applicant) S Turner, Inner West Council (Respondent)
File Number(s):	2018/44213
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. The Court notes that the Council has entered into the agreement on the basis that the applicant has deleted two rear first floor bedrooms on each allotment (when compared to initial application) to ensure compliance with Local Environmental Plan controls.

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. The Applicant is granted leave to amend Development Application No. DA2017005114 and to rely upon the following amended plans, copies of which are behind Annexure “A”:

Plan, Revision and Issue No.	Date Issued	Prepared by
DA02 Revision F	15.10.2018	Archi Spectrum
DA03-DA07 Revision G	15.10.2018	Archi Spectrum
DA08 Revision B	03.08.2018	Archi Spectrum
DA13 Revision D	15.10.2018	Archi Spectrum

2. The applicant is to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 GST exclusive in full and final payment within 28 days.

3. The appeal is upheld.

4. Development Application No. DA201700511 for subdivision of land into 2 Torrens Title allotments, and to construct a new 2 storey dwelling house on each allotment at 30 Frederick Street, Sydenham, be approved subject to the conditions which are behind Annexure “B”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (2.20 MB, pdf)

Annexure B (213 KB, pdf)