McQueen and Smith v Woollahra Municipal Council

[2018] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:	McQueen and Smith v Woollahra Municipal Council [2018] NSWLEC 1494
Hearing dates:	Conciliation conference on 12 – 14 September 2018
Date of orders:	19 September 2018
Decision date:	19 September 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Matthew McQueen (First Applicant) Matthew Smith (Second Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: C Renner, Dentons Australia Pty Ltd (Applicants) S Simington, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/103321
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. In accordance with s 8.18(4)(a) of the Environmental Planning and Assessment Act 1979, the Respondent's order dated 12 March 2018 is revoked, and in accordance with s 8.18(4)(f) of the Environmental Planning and Assessment Act 1979, the Applicants are instead ordered:

1. by 13 December 2018:

1. to remove (only) the upper of the two air-conditioning condenser units and associated brackets installed on the external rear wall of the principal building at the first floor level of the subject premises at 140 Boundary Street Paddington; and

2. to relocate the same to ground level in the rear yard adjacent to the dividing wall with either No. 138 or No. 142 Boundary Street, ensuring that all conduits for the unit as relocated are encased and painted the same colour as the wall/roof immediately underneath; and

2. thereafter, at all times to ensure that the relocated unit is only operated:

1. during peak times - at a noise level that does not exceed 5dB(A) above the ambient background noise level measured at any property boundary, and

2. during off peak times - at a noise level that is inaudible in a habitable room of any adjoining residence; and

where:

peak time means:

(a)    the time between 8:00am and 10:00pm on any Saturday, Sunday or public holiday, or

(b)    the time between 7:00am and 10:00pm on any other day.

2. There be no order as to costs of the proceedings.

……………………….

M Chilcott

Commissioner of the Court

Decision last updated: 19 September 2018