Malouf v Woollahra Municipal Council

[2016] NSWLEC 1655

Land and Environment Court

New South Wales

Medium Neutral Citation:	Malouf v Woollahra Municipal Council [2016] NSWLEC 1655
Hearing dates:	Conciliation conference on 23 November, 15 December 2016
Date of orders:	20 December 2016
Decision date:	20 December 2016
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	Modification – development application: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Edward Malouf (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: Tony Hatzis, Hatzis Cusack Lawyers (Applicant) Stuart Simington,Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/00235041
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 appeal is upheld in part.

2. Application number DA387/2012/4 made under s96 of the Environmental Planning and Assessment Act 1979 in relation to development consent No. DA387/2012 is approved by:

Amending condition I.20 to read as follows:

I.20 Bay Street Windows and Doors – Hours of Use

The windows and doors fronting Bay Street are to be closed at the    following times:

Monday to Saturday    12 midnight

Sunday       11pm

Amending condition I.13 to read as follows:

I.13 Cooper Street Bi-Fold Windows – Hours of Use

The bi-fold windows fronting Cooper Street are to be closed from    10pm seven nights a week to protect the amenity of the residential    neighbours in Cooper Street.

3. As a consequence of orders (2) and (3) above, the Court notes that Development Consent DA/387/2012 is now subject to the consolidated, modified conditions of development consent set out in Annexure A.

…………….

Susan Dixon

Commissioner

235041.16 Dixon (C) (561 KB, pdf)