Schoonbergen v Inner West Council

[2017] NSWLEC 1005

Land and Environment Court

New South Wales

Medium Neutral Citation:	Schoonbergen v Inner West Council [2017] NSWLEC 1005
Hearing dates:	Conciliation conference on 15 June, 6, 21, 26 July, 25 August, 22, 26 September, 19 October, 8, 23 November 2016
Date of orders:	10 January 2017
Decision date:	10 January 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Dennis Schoonbergen (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: Mr D. Briggs, DG Briggs and Associates (Applicant) Mr S. Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/00158297
Publication restriction:	No

Judgment

1. 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”.

2. 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.

3. 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.

4. 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 purposes of the development application:

Drawing No.	Title	Prepared by	Date
DA-01 – Revision E	Site Analysis Plan/Site Plan/Roof Plan	George Carbone Architect	01.08.2016
DA-02 – Revision D	Existing 7 Demolition Floor Plan – Dwelling 1	George Carbone Architect	12.07.2016
DA-03 – Revision D	Floor Plans – Dwelling 2	George Carbone Architect	01.08.2016
DA-04 – Revision D	South & East Elevations	George Carbone Architect	01.08.2016
DA-05 – Revision D	North, South & West Elevation	George Carbone Architect	01.08.2016
DA-06 – Revision A	Sections	George Carbone Architect	12.07.2016
DA-07 – Revision B	Concept Landscaping Plan	George Carbone Architect	01.08.2016
DA-08 – Revision B	Concept Stormwater Plan	George Carbone Architect	01.08.2016
DA-09 – Revision B	Erosion & Sediment Control Plan + Management Plan Construction Site	George Carbone Architect	01.08.2016
Drawings H-00 to H-07, Project No. BC1612	Stormwater Plans	Buckton Consulting Pty Limited	31 October 2016

2. The Applicant is to pay the costs thrown away as a result of amending the development application pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $4,000.00 within 28 days.

3. The appeal is upheld.

4. Development Application No. DA-2015.172.1 to demolish garage and rear section of the existing semi-detached dwelling house and construction of an attached dual occupancy, alterations to the existing dwelling house, new front fence and gate and    carparking in front of the existing dwelling at 150 Alt Street, Haberfield is determined by approving the plans referred to in condition A (1) of Annexure “A” and subject to the conditions of development consent set out in Annexure “A”.

…………….

Jenny Smithson

Commissioner

158297.16 - Annexure A - Conditions of Consent (92.1 KB, pdf)

158297.16 - Plans - 1 (5.52 MB, pdf)

158297.16 - Plans - 2 (2.21 MB, pdf)