Morisset Project Pty Limited v Lake Macquarie City Council

[2018] NSWLEC 1487

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morisset Project Pty Limited v Lake Macquarie City Council [2018] NSWLEC 1487
Hearing dates:	Conciliation conference on 14 September 2018
Date of orders:	14 September 2018
Decision date:	14 September 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	MODIFICATION APPLICATION – condition of consent - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Morisset Project Pty Limited (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Solicitors: J Ede, Wilshire Webb Staunton Beattie (Applicant) P Holt, Holding Redlich (Respondent)
File Number(s):	2018/75922
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Morisset Project Pty Limited against the actual refusal by Lake Macquarie City Council of modification application No. DA/1055/2016A for the property at 131 & 133 Dora Street, Morisset (Lot 9 & 9 DP 22944). The application seeks to modify the section 94 contribution referred to in consent condition No. 5.

2. 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”.

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. 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 appeal is upheld.

2. Condition 5 of Development Consent No. DA/1955/2016 is amended in accordance with the conditions recorded in Annexure A.

3. No order as to costs.

……………………….

Commissioner Gray

Annexure A (701 KB, pdf)