Marvel Development Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1112

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marvel Development Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1112
Hearing dates:	Conciliation conference on 12 February 2018
Date of orders:	06 March 2018
Decision date:	06 March 2018
Jurisdiction:	Class 1
Before:	O’Neill 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:	Marvel Development Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Mr. Stan Kondilios, Hall and Wilcox (Applicant) Mr. Kendall Webber, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/266545
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. Leave is granted for the Applicant to rely on the amended plans and documents listed in paragraph 2 of the conditions of consent set out in Annexure “A” and included at Annexure “B”.

2. The appeal is upheld.

3. The Applicant’s clause 4.6 written request to vary the height limit is upheld.

4. Development Application DA0136/17, being for the demolition of existing structures and construction of a new boarding house with 25 rooms and a basement carpark at 375 Pacific Highway, Lindfield, NSW, 2070, is approved, subject to the conditions set out in Annexure “A” and the plans contained in Annexure “B”.

5. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application pursuant to section 8.15(3) (cf previous section 97B) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, payable within 7 days of agreement or assessment.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A (228 KB, pdf)

Annexure B Pt1 (14.1 MB, PDF)

Annexure B Pt2 (7.10 MB, PDF)