Maham Group Pty Ltd v Cumberland Council

[2017] NSWLEC 1247

Land and Environment Court

New South Wales

Medium Neutral Citation:	Maham Group Pty Ltd v Cumberland Council [2017] NSWLEC 1247
Hearing dates:	Conciliation conference on 20 April 2017
Date of orders:	17 May 2017
Decision date:	17 May 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPEAL under s97(1) against refusal of application for construction of boarding house: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Maham Group Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Solicitors: Conomos Legal, (Applicant) Storey and Gough Lawyers (Respondent)
File Number(s):	2016/00386185
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of Development Application No. DA/380/2016 for demolition, tree removal and construction of a two storey boarding house development consisting of 25 rooms.

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, 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 are:

1. The Applicant is granted leave to amend the development application rely upon the plans set out in Condition 2 in Annexure A;

2. The appeal is upheld; and

3. Development application DA/380/2016 which proposes demolition of all structures, tree removal and the construction of a two storey boarding house development consisting of 25 rooms, including a managers room and three accessible rooms and the provision of parking for 6 cars (including one disabled space) and 5 motocycles is approved subject to conditions of consent set out in Annexure A.

…………….

D M Dickson

Commissioner of the Court

386185.16 Dickson (C) (477 KB, pdf)

386185.16 Dickson - Plans (4.52 MB, pdf)