Modog Pty Limited v North Sydney Council

[2016] NSWLEC 1433

Land and Environment Court

New South Wales

Medium Neutral Citation:	Modog Pty Limited v North Sydney Council [2016] NSWLEC 1433
Hearing dates:	Conciliation conference on 1 and 13 September 2016
Date of orders:	21 September 2016
Decision date:	21 September 2016
Jurisdiction:	Class 1
Before:	Smithson C
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:	Modog Pty Limited (Applicant) North Sydney Council (Respondent)
Representation:	Ms J Reid, Martin Place Chambers (Applicant) Mr M Pearce, North Sydney Council (Respondent)
File Number(s):	2016/170478
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, 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. Leave is granted to the applicant to rely on amended plans prepared by Cracknell & Lonergan Architects:

S34 101	A	Basement Plan L1
S34 102	A	Basement Plan L2
S34 103	A	Basement Plan L3
S34 104	A	Lower Ground – L1
S34 105	B	Lower Ground – L2
S34 106	B	Lower Ground – L3
S34 107	B	Ground Floor – L4
S34 108	B	Upper Floor – L5
S34 109	B	Upper Floor – L6
S34 110	B	Penthouse Floor – L7
S34 111	B	Roof Plan
S34 201	B	Cross Section
S34 301	B	Elevations
S34 302	A	Elevations
S34 303	B	Elevations
S34 601	B	Materials and Finishes

2. The appeal is upheld.

3. Development application 102/2016 is approved, subject to the conditions in annexure A hereto.

…………………………...

Commissioner Smithson

170478.16 Smithson (C) (454 KB, pdf)

170478.16 Smithson - 3East Crescent McMahons Point - S34-Bv (6.29 MB, pdf)