Miskoski v Sutherland Shire Council

[2017] NSWLEC 1252

Land and Environment Court

New South Wales

Medium Neutral Citation:	Miskoski v Sutherland Shire Council [2017] NSWLEC 1252
Hearing dates:	Conciliation conference 23 May 2017
Date of orders:	24 May 2017
Decision date:	24 May 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	MODIFICATION APPLICATION: dual occupancy; addition of roof top service area; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Slobodan Miskoski (First Applicant) Natalie Trajceski (Second Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: Bartier Perry (Applicants) Janelle Maree Amy, Sutherland Shire Council (Respondent)
File Number(s):	2017/34117
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld

2. The Applicant is granted leave to amend Modification Application No. MA16/0425 and to rely upon the following amended plans, a copy of which is attached as Annexure “A”:

Drawing No.	Drawing Name	Prepared by	Date
SH01, Rev F	Site Plan	JIH Building Designs	22 May 2017
SH02, Rev F	Lower Ground	JIH Building Designs	22 May 2017
SH03, Rev F	Ground Floor Plan	JIH Building Designs	22 May 2017
SH04, Rev F	First Floor	JIH Building Designs	22 May 2017
SH05, Rev F	Roof Plan	JIH Building Designs	22 May 2017
SH06, Rev F	West Elevation	JIH Building Designs	22 May 2017
SH07, Rev F	North Elevation	JIH Building Designs	22 May 2017
SH08, Rev F	South Elevation	JIH Building Designs	22 May 2017
SH09, Rev F	East Elevation	JIH Building Designs	22 May 2017
SH10, Rev F	Section AA	JIH Building Designs	22 May 2017
SH11, Rev F	Section BB	JIH Building Designs	22 May 2017
SH12, Rev F	Section CC	JIH Building Designs	22 May 2017
SH13, Rev F	Section DD	JIH Building Designs	22 May 2017
SH14, Rev F	Schedules	JIH Building Designs	22 May 2017
SH15, Rev F	Construction Management	JIH Building Designs	22 May 2017
SH16, Rev F	Perspective	JIH Building Designs	22 May 2017
SH17, Rev F	Perspective	JIH Building Designs	22 May 2017
SH18, Rev F	Strata Plan	JIH Building Designs	22 May 2017
SH19, Rev F	Shadow Diagram	JIH Building Designs	22 May 2017
SH20, Rev F	FSR Calculation	JIH Building Designs	22 May 2017
SH21, Rev F	Concept Landscape Plan	JIH Building Designs	10 April 2017
SH22, Rev F	First Floor Footprint Calculations	JIH Building Designs	22 May 2017
SH23, Rev F	Service Rood Perspective	JIH Building Designs	22 May 2017

3. Modification Application No. MA16/0425 (as amended) on Lot 41 in Community Plan DP270647, otherwise known as 4 Kershaw Road, Menai, be approved subject to condition 2 contained in Annexure “B”.

4. As a consequence of order (3), Development Consent No. DA14/0717 is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.

…………….

Joanne Gray

Commissioner of the Court

34117.17 Annexure A (2.80 MB, pdf)

34117.17 Annexure B (53.3 KB, pdf)