Smith v Woollahra Municipal Council

[2018] NSWLEC 1266

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smith v Woollahra Municipal Council [2018] NSWLEC 1266
Hearing dates:	Conciliation conference on 4 June 2018
Date of orders:	04 June 2018
Decision date:	04 June 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Ben Smith (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: M Yu (Applicant) Solicitor: G Garrett, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/362467
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. Leave is granted for the Applicant to amend its development application to rely upon the amended documentation referred to in condition A.3 of the conditions attached and marked Annexure ‘A’.

2. The Appeal is upheld.

3. Development Application No 116/2017 to excavate under existing tennis court and extend existing garage at 67 Fitzwilliam Road, Vaucluse is approved subject to the conditions set out in Annexure ‘A’.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (485 KB, pdf)