Mesiti v Northern Beaches Council

[2016] NSWLEC 1448

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mesiti v Northern Beaches Council [2016] NSWLEC 1448
Hearing dates:	Conciliation conference on 28 January, 12, 19 February, 21 March, 1, 2, 6 June 2016
Date of orders:	06 June 2016
Decision date:	06 June 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	See (4) below
Catchwords:	Building Certificate: Unauthorised retaining wall, structural, pedestrian safety, encroachment on council land; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Enzo Roberto Mesiti (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: Ms Rebecca Anne Joy Harper, Wood Marshall Williams Pty Ltd (Applicant) Mr Stephen Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	154280 of 2016
Publication restriction:	No

Judgment

1. ACTING 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, 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. The appeal is upheld.

2. Following compliance with the conditions set out in Annexure "A" to the satisfaction of the respondent, the Respondent is to issue the Applicant with a building certificate for the retaining wall adjacent to 30 Pine Avenue, Narraweena by 31 January 2017.

3. The conditions set out in Annexure "A" must be complied with within the dates set out in respect of conditions A-G inclusive.

4. The name of the Respondent is changed from Warringah Council to Northern Beaches Council.

…………….

R Hussey

Acting Commissioner

154280.16 - Annexure A (7.76 KB, pdf)