McNamee v Ku-ring-gai Council

[2018] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:	McNamee v Ku-ring-gai Council [2018] NSWLEC 1313
Hearing dates:	Conciliation conference on 23 April 2018; 22 May 2018; 4 & 12 June 2018
Date of orders:	25 June 2018
Decision date:	25 June 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing structures and construction of seniors living development; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:	Principal judgment
Parties:	Peter McNamee (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel:  M Staunton (Applicant)  Solicitors:  A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/324451
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA0345/17 for demolition of existing structures and construction of seniors living development comprising seven units, basement parking, landscaping and associated works pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 at 71 Killeaton St Ives.

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. Leave granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions attached and marked "A".

2. The applicant to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of $5,000.00 to be paid by 14 June 2018.

3. The appeal is upheld.

4. Development Application No. DA0345/17 for demolition of existing structures and construction of seniors living development comprising seven units, basement parking, landscaping and associated works - State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 be approved in accordance with the conditions in Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (428 KB, pdf)

Plans (7.77 MB, pdf)

Decision last updated: 25 June 2018