Miczar Pty Ltd v Inner West Council

[2017] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation:	Miczar Pty Ltd v Inner West Council [2017] NSWLEC 1256
Hearing dates:	Conciliation conference on 3, 15 & 22 May 2017
Date of orders:	26 May 2017
Decision date:	26 May 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	MODIFICATION APPLICATION - conciliation conference - agreement between the parties - orders ORDER APPEAL - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Miczar Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: J Reid (Applicant) M Bonanno, Solicitor (Respondent) Solicitors: Andrews & Holm (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/00383380, 2017/00033760
Publication restriction:	No

Judgment

1. COMMISSIONER: Miczar Pty Ltd appeals against both an order issued by the Council (in proceedings number 2016/383380) and the deemed refusal of an application to modify development consent (in proceedings number 2017/33760), which application concerns the subject matter of the order. On 10 February 2017, an order was made that both proceedings “run together and that evidence in one proceedings be evidence in the other.”

2. In each of the proceedings, 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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

5. In proceedings 2017/33760:

The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to rely upon amended plans referred to in conditions of consent annexed hereto and marked Annexure A.

2. The appeal is upheld;

3. Development Consent is granted to modification M/2015/219 at 597 Darling Street, Balmain, subject to the conditions of consent annexed hereto and marked Annexure A.

4. As a consequence of order (3), development consent D/2013/198 is subject to the consolidated, modified conditions of consent as set out in Annexure B.

The Court notes the agreement between the parties that:

5. Upon the making of the orders set out above, the respondent will withdraw s121B Order EPA/2016/417 dated 5 December 2016.

6. In proceedings 2016/383380:

1. Upon the making of the orders set out above in 2016/383380, the Court notes that the respondent will withdraw s121B Order EPA/2016/417 dated 5 December 2016;

2. The applicant is given leave to discontinue appeal 2016/383380 upon receipt of the respondent’s withdrawal of the above s121B Order, with each party to pay its own costs.

……………………….

Joanne GrayCommissioner of the Court

383380.16_ 33760.17 Annexure A (C) (90.6 KB, pdf)

383380.16 33760.17 Annexure B (C) (310 KB, pdf)