Robby Ingham Pty Ltd v Kiama Municipal Council

[2016] NSWLEC 1490

Land and Environment Court

New South Wales

Medium Neutral Citation:	Robby Ingham Pty Ltd v Kiama Municipal Council [2016] NSWLEC 1490
Hearing dates:	Conciliation conference on 21 April 2016, 18 May 2016, 28 June, 4 August, 1, 15 and 29 September 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: construction of a residential dwelling; 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:	Robby Ingham Pty Ltd (Applicant) Kiama Municipal Council (Respondent)
Representation:	Solicitors: Mr G Green, solicitor, Pikes & Verekers Lawyers (Applicant) Ms S Nevin, solicitor, Sparke Helmore Lawyers (Respondent)
File Number(s):	2016/00151976
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application 10.2015.77.1 for the construction of a residential dwelling at 242 Fern Street Gerringong.

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 appeal is upheld;

2. The Applicant is granted leave to rely on the amended plans and updated supplementary documentation listed in Condition 1 of Annexure “A”;

3. The Applicant is to pay the Respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

4. Development Application 10.2015.77.1 for a residential dwelling at 242 Fern Street, Gerringong (being Lot 202 DP1169384) is approved subject to the conditions contained at Annexure “A”.

…………….

G T Brown

Commissioner

151976.16 - Annexure A (61.8 KB, pdf)