Morton v Lane Cove Council

[2016] NSWLEC 1299

Land and Environment Court

New South Wales

Medium Neutral Citation:	Morton v Lane Cove Council [2016] NSWLEC 1299
Hearing dates:	Conciliation conference on 15 April, 6 May, 28 June 2016
Date of orders:	12 July 2016
Decision date:	12 July 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: subdivision of land; partial demolition of existing dwelling and retention of other dwelling; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Stephen James Morton (Applicant) Lane Cove Council (Respondent)
Representation:	Counsel: Mr C Gough, solicitor (Applicant) Ms J McCullan, solicitor (Respondent) Solicitors: Storey & Gough (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/00163119
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of DA No 131/2015 for the subdivision of land; partial demolition of existing dwelling and retention of other dwelling at 4 Bay street Greenwich.

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, 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 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 as the plans relied upon for the purpose of the development application:

1. Plan of Proposed Subdivision of Lot B DP316274 and Lot 1 DP107132 prepared by Frank M Mason and Co Pty Limited, dated 05.07.16 ref 33077-10

2. Stormwater Drainage DWNG NO:x35/1, Sheet 1 of 1, dated 05/16, Issue B, prepared by Amtech Engineering;

3. Ground and First Floor Plans, Drwg W47/1, Sheet 1 of 4, dated May 2016 (Issue A), Proposed Dwelling, 4 Bay St, Greenwich, Mr & Mrs S Morton;

4. North & West Elevations, Drwg W47/1, Sheet 2 of 4, dated May 2016 (Issue A), Proposed Dwelling, 4 Bay St, Greenwich, Mr & Mrs S Morton;

5. East & South Elevations, Drwg W47/1, Sheet 3 of 4, dated May 2016 (Issue A), Proposed Dwelling, 4 Bay St, Greenwich, Mr & Mrs S Morton;

6. Site Plan & Section, Drwg W47/1, Sheet 4 of 4, dated May 2016 (Issue B), Proposed Dwelling, 4 Bay St, Greenwich, Mr & Mrs S Morton.

2. The appeal is upheld.

3. Development Application No. 131/2015 as amended, for the demolition of part of the existing dual occupancy dwelling located on proposed Lot 1 and the retention of a single dwelling on that lot, and a two lot subdivision into two equal lots of 550m2, on the land at Lot B in Deposited Plan 316274, 4 Bay Street, Greenwich, is approved subject to the conditions set out in Annexure "A" hereto.

…………….

G T Brown

Commissioner

163119.16 - Annexure A (40.1 KB, pdf)