Marchese v Central Coast Council

[2018] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marchese v Central Coast Council [2018] NSWLEC 1310
Hearing dates:	Conciliation conference on 21 June 2018
Date of orders:	21 June 2018
Decision date:	21 June 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Eugene Marchese (Applicant) Central Coast Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) Dr J Smith (Respondent) Solicitors: AJL Legal (Applicant) Central Coast Council (Respondent)
File Number(s):	2017/282995
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Egene Marchese against the deemed refusal by Central Coast Council of development application no. 52565/2017 for construction of coastal protection works at 29, 31 & 33 Pacific Street and 23a, 23b & 25c Ocean View Drive, Wamberal.

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 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 appeal is upheld.

2. Consent is granted to development application 52565/2017, for the construction of coastal protection works at:

1. Lot 6 DP 8854, with a street address of 29 Pacific Street Wamberal

2. Lot 5 DP 8854, with a street address of 31 Pacific Street Wamberal

3. Lot 4 DP 8854, with a street address of 33 Pacific Street Wamberal

4. Lot 3 DP 8854, with a street address of 23a Ocean View Drive Wamberal

5. Lot 2 DP 8854, with a street address of 23b Ocean View Drive Wamberal

6. Lot 4 DP 524938, with a street address of 25c Ocean View Drive Wamberal

subject to the conditions contained in the annexure marked “A” to this agreement.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (314 KB, pdf)