MF Holdings NSW Pty Ltd v Willoughby City Council

[2016] NSWLEC 1300

Land and Environment Court

New South Wales

Medium Neutral Citation:	MF Holdings NSW Pty Ltd v Willoughby City Council [2016] NSWLEC 1300
Hearing dates:	Conciliation conference on 4 December 2015, 29 January, 16 March, 5 April 2016
Date of orders:	30 June 2016
Decision date:	30 June 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: use of existing building as a boarding house; 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:	MF Holdings NSW Pty Ltd (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: Ms J. Reid, barrister (Applicant) Mr J. P. Merlino, solicitor (Respondent) Solicitors: Constantine G. Pavlis & Co Solicitors (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00149904
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA – 2014/566 to use an existing building as a boarding house at 28 Archer Street Chatswood.

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, 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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. The applicant is granted leave amend development application DA-2014/566 as follows:

1. Rely on the following plans

Type	Plan No.	Revision /Issue No	Plan Date (as Amended)	Date Stamped by Council	Prepared by
arch	A-0101, A-0103, A-0201,	A	Dec 2015	-	Benson Mccormack
A-0202, A-0203, A-0204 Project 1461A
arch	A-1301	B	Feb 2016	-	Benson Mccormack
arch	A-0102 Project 1461A	C	Feb 2016	-	Benson Mccormack
landscape	LP01 Project 16693	A	04 Feb 2016	-	Matthew Higginson

2. Rely on an Amended Plan of Management dated December 2015 and provided to Council in April 2016.

3. Development Application DA-2014/566 for Internal reconfiguration and change of use of the existing building into a Boarding House, comprising 10 rooms with 17 lodgers, parking and associated works at 28 Archer Street, Chatswood is approved subject to the conditions of consent at Annexure A.

…………….

G T Brown

Commissioner

149904.16 - Annexure A (82.3 KB, pdf)