Matthew James Pty Ltd v Sutherland Shire Council

[2018] NSWLEC 1097

Land and Environment Court

New South Wales

Medium Neutral Citation:	Matthew James Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1097
Hearing dates:	Conciliation conference on 6 February 2018
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: demolition and construction of three townhouses; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Matthew James Pty Ltd(Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitor: Vasili Conomos, Conomos Legal (Applicant) Janelle Amy, Sutherland Shire Council (Respondent)
File Number(s):	2017/00253971
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Sutherland Shire Council of development application DA/17/0508. The application sought consent for demolition of the existing dwelling and construction of three townhouses. The works are proposed at 35 Morrison Avenue, Engadine.

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 s34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to amend the development application and rely on the following plans in the proceedings

Plan number	Reference	Prepared by	Date
DWG No. 01 Issue S34-4	Site Plan	Scard Design	Prepared 15 February 2018
DWG No. 02 Issue S34-4	Basement Floor Plan	Scard Design	Prepared 15 February 2018
DWG No. 03 Issue S34-4	Ground Floor Plan	Scard Design	Prepared 15 February 2018
DWG No. 04 Issue S34-4	First Floor Plan	Scard Design	Prepared 15 February 2018
DWG No. 05 Issue S34-4	Elevations 01	Scard Design	Prepared 15 February 2018
DWG No. 06 Issue S34-4	Elevations 02	Scard Design	Prepared 15 February 2018
DWG No. 07 Issue S34-4	Sections	Scard Design	Prepared 15 February 2018
DWG No. H01A	Site Stormwater Drainage Plan and Details	Clemensen Holdings Pty Ltd	Prepared April 2017
DWG No. 17-3456 L01 Sheet 1 of 2	Landscape Plan	Zenith Landscape Design	Prepared 2 May 2017
DWG No. 17-3456 L02 Sheet 2 of 2	Landscape Plan	Zenith Landscape Design	Prepared 2 May 2017

2. The appeal is upheld.

3. Development application DA/17/0508 lodged on 4 May 2017 seeking approval for the demolition and the existing dwelling and construction of three townhouses, in-ground swimming pools and basement carparking is approved subject to the conditions in Annexure “A”.

4. The applicant is to pay the respondent’s costs thrown away for the purpose of s97B of the Environmental Planning and Assessment Act 1979, in the amount of $3,000 payable within 28 days of the making of these orders.

…………….

D M Dickson

Commissioner of the Court

Annexure A (389 KB, pdf)