MNT Investments Pty Limited v Northern Beaches Council

[2017] NSWLEC 1596

Land and Environment Court

New South Wales

Medium Neutral Citation:	MNT Investments Pty Limited v Northern Beaches Council [2017] NSWLEC 1596
Hearing dates:	Conciliation conference on 10 and 31 May, 15 June and 18 October 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	MNT Investments Pty Limited (Applicant) Northern Beaches Council (Respondent)
Representation:	Mr A Sattler, Sattler & Associates Pty Ltd (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/26834
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 Applicant is given leave to amend the development application by substituting the following plans and documents as the plans and documents relied upon for the purposes of the development application:

Plan No. / Title	Issue/ Revision & Date	Prepared by	Plan No. / Title
DA03 Ground Floor Plan	Amd. E 7 August 2017	Simon Rosewell Pty Ltd	DA03 Ground Floor Plan
DA04 Elevations 01	Amd. D 7 August 2017	Simon Rosewell Pty Ltd	DA04 Elevations 01
DA05 Elevations 02	Amd. F 7 August 2017	Simon Rosewell Pty Ltd	DA05 Elevations 02
DA06 Section	Amd. G 15 June 2017	Simon Rosewell Pty Ltd	DA06 Section
DA09 Site Plan	Amd. E 7 August 2017	Simon Rosewell Pty Ltd	DA09 Site Plan
DA 11 First Floor & Mezzanine Plans	Amd. E 7 August 2017	Simon Rosewell Pty Ltd	DA 11 First Floor & Mezzanine Plans
SK01 Section Track System	Undated	Simon Rosewell Pty Ltd	SK01 Section Track System
DA03 Ground Floor Plan	Amd. E 7 August 2017	Simon Rosewell Pty Ltd	DA03 Ground Floor Plan
DA04 Elevations 01	Amd. D 7 August 2017	Simon Rosewell Pty Ltd	DA04 Elevations 01
Document	Date	Author	Received
Statement of Environmental Effects	29 March 2016	Colco Consulting Pty Ltd	30 March 2016
Plan of Management for the Operations of Donny’s Café, Bar & Restaurant	October 2017 (with a cover note “DONNY’s August 2017)	MNT Investments Pty Ltd	October 2017
Heritage Impact Statement	Simon Rosewell	30 March 2016
Social Impact Assessment	2016	MNT Investments Pty Ltd	30 March 2016
Acoustic Impact Assessment	25 September 2017	PKA Acoustic Consulting	September 2017

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA DA77/2016 for change of use and alterations and additions to an existing commercial building for the use of the site as a restaurant/café, consolidation of shops, addition of a new first floor, new mezzanine level, rooftop terrace, outdoor eating areas, and extension to the hours of operation, at 29 Sydney Road, Manly subject to the conditions annexed to this Agreement at “A” and the amended plans annexed to this Agreement at “B”.

4. The applicant is to pay the respondent's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

……………………….

Senior Commissioner Martin

Annexure A (C) (294 KB, pdf)

Annexure B (Plans) (443 KB, pdf)