Olivera v Northern Beaches Council

[2017] NSWLEC 1747

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Olivera v Northern Beaches Council [2017] NSWLEC 1747
Hearing dates:	Conciliation conference on 7, 20 December 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION – appeal concerning the grant of development consent subject to conditions - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Sol Olivera (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: Mr P Vergotis, McCabes Lawyers (Applicant) Mr A Gough, Storey & Gough Lawyers(Respondent)
File Number(s):	2017/230709
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant in the proceedings was dissatisfied by a number of conditions imposed on development consent granted by Northern Beaches Council for the construction of a new dwelling house at 11 Barrabooka Street, Clontarf. The applicant therefore appealed against the determination of the Council pursuant to s 97 of the Environmental Planning and Assessment Act 1979. The appeal proceeded to a compulsory conciliation conference in accordance with s34AA of the Land and Environment Court Act 1979 (the Court Act).

2. At or after the conciliation conference, an agreement under s 34(3) of 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 s34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely on the minor amendments set out in the following plans which are Annexure ‘B’:

Drawing No.	Revision	Date
Drawing No. DA-07B	Revision B	14/12/17
Drawing No. DA-08B	Revision B	14/12/17
Drawing No. DA-10B	Revision B	14/12/17
Drawing No. DA-11B	Revision B	14/12/17
Drawing No. DA-13B	Revision B	14/12/17
Drawing No. DA-37	-	14/12/17

2. The appeal is upheld and Development Application 371/2016 for the demolition of existing structures and construction of new dwelling house and associated facilities at Lot 12, Section K in DP 2610 (No. 11) Barrabooka Street, Clontarf NSW is approved by the granting of conditional development consent subject to the conditions contained in Annexure ‘A’.

……………………….

Commissioner J Gray

Annexure A

Annexure B

Amendments

22 December 2017 - Annexures attached

Decision last updated: 22 December 2017