Southwell-Kelly v Woollahra Municipal Council

[2017] NSWLEC 1040

Land and Environment Court

New South Wales

Medium Neutral Citation:	Southwell-Kelly & Anor v Woollahra Municipal Council [2017] NSWLEC 1040
Hearing dates:	Conciliation conference on 2 February 2017
Date of orders:	03 February 2017
Decision date:	03 February 2017
Jurisdiction:	Class 1
Before:	Morris 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:	James Peter Southwell-Kelly (First Applicant) Rivke Duan Rebecca Deans (Second Applicant) Woollahra Council (Respondent)
Representation:	Solicitors: Mr C Deng McLachlan Thorpe Partners (Applicant) Mr A Hudson Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/285567
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, 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 appeal is upheld.

2. The Court notes orders make in Land and Environment Court Proceedings No 285518 of 2016 and that consent has been granted to the Section 96 modification application in respect of DA506/2010/2.

3. The Order made by the Respondent dated 31 August 2016 pursuant to Item 15 to the Table to Section 121B of the Environmental Planning and Assessment Act 1979 is revoked.

…………….

Commissioner Morris