Michael Herrman v Council of the City of Sydney

[2017] NSWLEC 1027

Land and Environment Court

New South Wales

Medium Neutral Citation:	Michael Herrman v Council of the City of Sydney [2017] NSWLEC 1027
Hearing dates:	Conciliation conference on 18 January 2017
Date of orders:	25 January 2017
Decision date:	25 January 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPEAL under s97(1) against refusal of application for use as a boarding house: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Cases Cited:	Nil
Category:	Principal judgment
Parties:	Michael Herrman (Applicant) Council of the City of Sydney (Respondent)
Representation:	Solicitors: G.McKee, McKees Legal Solutions, (Applicant) K.Morrin, City of Sydney (Respondent)
File Number(s):	2016/333864
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of Development Application No. D/2016/126 for the use of an existing two storey terrace building as a boarding house at 21 Hill Street, Surry Hills.

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 are:

1. The Applicant is granted leave to rely on the amended plans set out in Annexure A. The parties agree that the amendments are minor for the purposes of section 97B of the Environmental Planning and Assessment Act;

2. The appeal is upheld;

3. Development Application No. D/2016/126 which was refused by the Respondent on May 12 2016 for the use of the property as a boarding house containing 5 boarding rooms in accordance with the State Environmental Planning Policy (Affordable Rental Housing) 2009 is approved subject to conditions contained in Annexure B hereto.

…………….

D M Dickson

Commissioner of the Court

333864.16 - Annexure A Plans (1.23 MB, pdf)

333864.16 Dickson Annexure B (C) (40.1 KB, pdf)