McNamee v Ku-ring-gai Council

[2018] NSWLEC 1289

Land and Environment Court

New South Wales

Medium Neutral Citation:	McNamee v Ku-ring-gai Council [2018] NSWLEC 1289
Hearing dates:	Conciliation conference on 30 April 2018; 14 & 22 May 2018; 4 & 6 June 2018
Date of orders:	18 June 2018
Decision date:	18 June 2018
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See [5] below
Catchwords:	MODIFICATION APPLICATION: modification to the approval for a residential flat building by amending layout configuration and increasing unit numbers to 16; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
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):	2017/324433
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification Application No. MOD0166/17 for modification to the approval for a residential flat building by amending layout configuration and increasing unit numbers to 16 at 9-11 Memorial Avenue, 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 annexed and marked “A”.

2. The appeal is upheld.

3. Modification Application No. MOD0166/17 for modification to Land and Environment Court approval 10654 of 2014 (DA0402/13) proposing layout configuration and increasing unit numbers to 16 be approved in accordance with Annexure “A”.

……………………….

Graham Brown

Commissioner of the Court

Annexure A (110 KB, pdf)

Annexure B (6.74 MB, pdf)