Mackenzie v Blacktown City Council

[2018] NSWLEC 1496

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mackenzie v Blacktown City Council [2018] NSWLEC 1496
Hearing dates:	Conciliation conference on 21 September 2018
Date of orders:	26 September 2018
Decision date:	26 September 2018
Jurisdiction:	Class 1
Before:	Chilcott 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:	Dugald MacKenzie (Applicant) Blacktown City Council (Respondent)
Representation:	Solicitors: G Christmas, Apex Planning and Environment Law (Applicant) L Raffaele, Bartier Perry (Respondent)
File Number(s):	2018/56394
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:

1. The Applicant’s clause 4.6 written request to the contravention of clause 4.3 of the Blacktown Local Environmental Plan 2015 be upheld.

2. The Applicant is granted leave to rely upon the following amended material:

Amended Waste Management Plan prepared by Mackenzie Architects International dated 2 August 2018

BASIX Certificate No 790293M_02 dated 27 August 2018

Nathers Certificate No 0003107610 dated 27 August 2018

Clause 4.6 Variation Request prepared by Think Planners dated 17 August 2018

3. The appeal is upheld.

4. The Applicant is to pay the Respondent’s costs under section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

5. Development Application No. SPP-17-00048, as amended, for the demolition of the existing dwellings and the construction of 6 storey residential flat building with basement carparking at 13-17 Carinya Street, is approved subject to the conditions in Annexure ‘A’.

……………………….

M Chilcott

Commissioner of the Court

Annexure A (C)