Song v North Sydney Council

[2016] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:	Song v North Sydney Council [2016] NSWLEC 1582
Hearing dates:	Conciliation conference on 8 November 2016
Date of orders:	28 November 2016
Decision date:	28 November 2016
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL: conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Zhi Zhuo Song (Applicant) North Sydney Council (Respondent)
Representation:	Solicitors: M G McKee, McKees Legal Solutions (Applicant) M M Pearce, North Sydney Council (Respondent)
File Number(s):	2016/278327
Publication restriction:	Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal of Development Application No DA05092/15 that sought approval for the demolition of the existing building and the erection of 23 apartments in a four storey development (the proposal) at 183-185 Mona Vale Road, St Ives (the site) by Ku ring gai Municipal Council (the Council).

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 are:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A;

2. The Appeal is upheld.

3. Modification application No DA0357/15/2 for modification to consent DA/0357/15 with regard to the deletion of the deferred commencement condition and other amendments at 2 Waruda Street, Kirribilli, NSW l is approved subject to the conditions set out in Annexure "A".

…………….

D M Dickson

Commissioner of the Court

278327.16 Dickson (C) (458 KB, pdf)