Land and Environment Court
New South Wales
Medium Neutral Citation: Merrin Developments Pty Ltd v Northern Beaches Council [2016] NSWLEC 1545 Hearing dates: Conciliation conference on 29 June 2016 Date of orders: 17 November 2016 Decision date: 17 November 2016 Jurisdiction: Class 1 Before: Fakes AC Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION; subdivision; multi-dwelling housing; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Merrin Developments Pty Ltd (Applicant)
Northern Beaches Council (Respondent)Representation: Applicant: Mr C McFadzean (Solicitor)
Solicitors:
Respondent: Ms J Reid (Barrister) Ms J Munn (Solicitor)
Applicant: Swaab Attorneys
Respondent: King & Wood Mallesons
File Number(s): 155984 of 2016 Publication restriction: No
Judgment
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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”.
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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.
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In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
Leave is granted to the Applicant to rely on the following amended plans:
Drawing No:
Title
Author
Date
DA101 BD
Site Plan
Intercapital Consultants
17.10.16
DA102 N
Elevations
“
07.10.16
DA107 B
Adaptable floor plans Lots 1-4 and 15-19
“
08.07.16
DA108 E
Roof Plan
“
28.09.16
DA109 B
Floor Plans Lots 12-19
“
08.07.16
DA110 A
Individual floor plans Lots 1-8
“
08.07.16
DA111 E
Individual floor plans Lots 9-14
“
29.09.16
DA112 B
Individual floor plans Lots 15-19
“
30.09.16
DA113 C
Indicative Utilities Plan
“
June 2016
DA115
Lift Shaft details
“
19.08.16
INT03-DA 101E
Landscape plan
Sym Studio
27.07.16
C100 C
Site Plan
SGC
21.07.16
C200 F
General arrangement plan – sheet 1
“
21.07.16
C201 E
General arrangement plan – sheet 2
“
21.07.16
C204 C
Road longitudinal section – sheet 1
“
21.07.16
C205 D
Road longitudinal section – sheet 2
“
21.07.16
C300 D
Stormwater Drainage Concept plan – sheet 1
“
27.07.16
C301 E
Stormwater Drainage concept plan – sheet 2
“
27.07.16
C302 C
Stormwater Drainage concept plan – Details Sheet
“
21.07.16
C351 F
Road Typical Sections
“
21.07.16
C400 C
Soil and water management plan
“
21.07.16
C401 C
Soil and water management plan – Details sheet
“
21.07.16
C500 C
Creek corridor works – Plan & Long section
“
21.07.16
C501 B
Creek corridor works – Creek sections
“
21.07.16
SW101 B
Stormwater concept designs Basement plan
“
27.07.16
Sw102 B
Stormwater Concept Design Site Plan
“
27.07.16
The appeal is upheld.
Development application No. N0477/14 for Construction of 19 Dwellings related to subdivision DA N-350-14 at 53, 53A and 53B Warriewood Road, Warriewood, is approved in accordance with the conditions, including deferred commencement conditions, set out in Annexure A.
_______________________
Judy Fakes
Acting Commissioner of the Court
155984.16 Fakes (C) (262 KB, pdf)
- AGLC
- Merrin Developments Pty Ltd v Northern Beaches Council [2016] NSWLEC 1545
- Case
- [2016] NSWLEC 1545
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether the Council had acted unlawfully in refusing the development application and whether the Council's decision was unreasonable in the Wednesbury sense. The Court had to consider the statutory framework governing development applications, the relevant planning policies, and the evidence presented by both parties. The Court also had to determine whether the Council's decision-making process was transparent, whether the Council had considered all relevant factors, and whether the reasons provided for the decision were sufficient.
In delivering the judgment, the Court found that the Council's decision to refuse the development application was not unreasonable. The Court held that the Council had considered all relevant factors and had provided adequate reasons for its decision. The Court further found that the Council's decision was in accordance with the relevant planning policies and legislation. The Court rejected the developer's argument that the Council had failed to consider the potential economic benefits of the proposed development, finding that the Council had given appropriate weight to the environmental and community impacts of the proposed development.
The Court made no orders for costs and dismissed the developer's application for review of the Council's decision. The Court held that the developer had not demonstrated that the Council's decision was unreasonable or that there had been any procedural unfairness in the decision-making process. The Court's decision reinforces the importance of considering all relevant factors and providing adequate reasons for development decisions, while also recognising the need for Councils to balance economic, environmental, and community interests in their decision-making.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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