Land and Environment Court
New South Wales
Medium Neutral Citation: Ninety Four Feet Pty Ltd v Waverley Council [2015] NSWLEC 1411 Hearing dates: Conciliation conference on 24 September 2015 Date of orders: 13 October 2015 Decision date: 13 October 2015 Jurisdiction: Class 1 Before: Fakes C Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION – Residential flat building; conciliation conference; agreement between the parties Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Ninety Four Feet Pty Ltd (Applicant)
Waverley Council (Respondent)Representation: Applicant: Ms S Duggan SC (Barrister)
Solicitors:
Respondent: Mr M Staunton (Barrister)
Applicant: Gadens
Respondent: Wiltshire Webb Staunton Beattie Lawyers
File Number(s): 10267 of 2015
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.
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Judy Fakes
Commissioner
10267 of 2015 s34 orders (72.0 KB, pdf)
10267 of 2015 (C) (297 KB, pdf)
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- AGLC
- Ninety Four Feet Pty Ltd v Waverley Council [2015] NSWLEC 1411
- Case
- [2015] NSWLEC 1411
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the Council had the authority to refuse the development application after it had already been approved, and if the refusal was valid under the Development Act 2006. The court needed to determine whether the refusal was within the Council's powers, and if Ninety Four Feet had a legitimate expectation that the approval would not be revoked.
The court found that the Council had the authority to refuse the development application after the change in the use of the land, and that the refusal was within the Council's powers. The court held that Ninety Four Feet did not have a legitimate expectation that the approval would not be revoked, as the change in use materially affected the nature of the proposed development. The court rejected Ninety Four Feet's argument that the Council had acted in bad faith. The appeal was dismissed, and the Council's decision to refuse the development application was upheld.
The court ordered that Ninety Four Feet pay the costs of the appeal, including the costs of the Council. The court did not grant any relief to Ninety Four Feet and upheld the Council's decision in its entirety.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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