McKenzie v Ku-ring-gai Council

[2017] NSWLEC 1267

Land and Environment Court

New South Wales

Medium Neutral Citation:	McKenzie v Ku-ring-gai Council [2017] NSWLEC 1267
Hearing dates:	Conciliation conference on 12 & 17 May 2017
Date of orders:	29 May 2017
Decision date:	29 May 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	ORDER: order for demolition of front fence; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Hugh McKenzie (First Applicant) Cameron McKenzie (Second Applicant) Ku-Ring-Gai Council (Respondent)
Representation:	Solicitor: Cameron McKenzie (Applicant) Mr K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/361428
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 121K of the Environmental Planning and Assessment Act 1979 against an Order for the removal of a front fence at 75 Kissing Point Road Turramurra.

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 Appeal is upheld.

2. The Respondent’s order 13 issued pursuant to Section 121B of the Environmental Planning and Assessment Act (NSW) 1979 dated 9 November 2016 is modified in accordance with Annexure ‘A’ attached.

3. Each party pay their own costs.

……………………….

G Brown

Commissioner of the Court

361428.16 Brown (C) (209 KB, pdf)