Michael Ishak v Bayside Council

[2017] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:	Michael Ishak v Bayside Council [2017] NSWLEC 1313
Hearing dates:	Conciliation Conference on 15 June 2017
Date of orders:	20 June 2017
Decision date:	20 June 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Michael Ishak(Applicant) Bayside Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicant) Solicitors: Mr A Cole (Respondent)
File Number(s):	2017/59348
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the amended plans set out in Annexure A.

2. The Applicant is to pay the Respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), in the agreed sum of $6,000.00 which is payable within 28 days of the relevant order of the Court.

3. The Appeal is upheld.

4. Development consent is granted to Integrated Development Application DA-2016/230 for the construction of a two (2) storey residential dwelling including rooftop terrace, basement parking, elevated plunge pool, front fence and demolition of existing buildings at Lot 204 of DP 19326 known as 56 Jacobson Avenue, Kyeemagh NSW 2216, in accordance with the conditions attached in Annexure A.

…………….

S Dixon

Commissioner of the Court

59348.17 (C) (199 KB, pdf)