Merrin Developments Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1075

Land and Environment Court

New South Wales

Medium Neutral Citation:	Merrin Developments Pty Ltd v Northern Beaches Council [2017] NSWLEC 1075
Hearing dates:	Conciliation conference on 16 January & 13 February 2017
Date of orders:	22 February 2017
Decision date:	22 February 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Counsel: Ms J. Reid (Applicant) Solicitors: Mr C McFadzean, Swaab Lawyers (Applicant) Ms D Townsend, King Wood & Mallesons (Respondent)
File Number(s):	2016/341084
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 s34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the Applicant to rely on the following amended plans:

Drawing Number	Title	Author	Date
Sheet No. DD01, Issue P11	Ground Floor and Basement Plans	Platinum Design Architects	20 January 2017
Sheet No. DD01A, Issue P4	Apartment Building Basement Plan
Sheet No. DD02, Issue P7	First Floor and Section Floor Plans
Sheet No. DD03, Issue P7	Streetscape Elevations 1 and Schedule of External Finishes
Sheet No. DD04, Issue P7	Streetscape Elevations 2 and Schedule of External Finishes
Sheet No. DD06, Issue P4	Roof Plan
Sheet No. DD07, Issue P1	Thermal Specification
INT02-DA-100	Coversheet, Imagery & Plant Schedule	Sym Studio	January 2017
INT02-S34-101, Issue A	Landscape Plan (RFB)		27 January 2017
INT02-S34-901, Issue A	Landscape Sections		27 January 2017

2. The appeal is upheld.

3. Development application No. N0389/16 for Construction of a residential flat building 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.

……………………….

Commissioner Smithson

341084.16 Smithson (C) (203 KB, pdf)

341084.16 Smithson - Plans (17.5 MB, pdf)