Nikki Beach One Pty Ltd v Inner West Council

[2016] NSWLEC 1372

Land and Environment Court

New South Wales

Medium Neutral Citation:	Nikki Beach One Pty Ltd v Inner West Council [2016] NSWLEC 1372
Hearing dates:	Conciliation conference on 26 August 2016
Date of orders:	26 August 2016
Decision date:	26 August 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION; alterations and additions and conversion to a residential flat building; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Nikki Beach One Pty Ltd (First Applicant) Karakatsis Holdings Pty Ltd (Second Applicant) Inner West Council (Respondent)
Representation:	Mr A Knox, Pikes & Verekers Lawyers (Applicants) Mr S Turner, Inner West Council (Respondent)
File Number(s):	2016/174244
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2014/578 for alterations and additions and conversion of an existing building to a residential flat building at 65 Johnston Street Annandale.

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 granted leave to amend Development Application D/2015/628 in accordance with the plans and documentation set out in condition 1of the conditions annexed at “A” to this agreement.

2. The applicant is to pay the Respondent’s costs arising under section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $4,000.00.

3. The appeal is upheld.

4. Development Application D/2015/628 for alterations and additions to the approved development (D/2014/578) at Lot 4 in DP 805311 being 65 Johnston Street, Annandale is approved subject to the conditions annexed to this Agreement at “A”.

…………….

Commissioner Brown

174244.16 Brown (C) (367 KB, pdf)