Spiby v Canterbury-Bankstown Council

[2018] NSWLEC 1148

Land and Environment Court

New South Wales

Medium Neutral Citation:	Spiby v Canterbury-Bankstown Council [2018] NSWLEC 1148
Hearing dates:	Conciliation conference on 6 February 2018, 28 February 2018 and 20 March 2018
Date of orders:	23 March 2018
Decision date:	23 March 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION – dwelling house and detached secondary dwelling - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	John Spiby (Applicant) Canterbury-Bankstown Council (Respondent)
Representation:	Solicitors: Andrew Gough, Storey & Gough (Applicant) Carlo Zoppo, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/251919
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal concerning a development application for the construction of a double storey dwelling and detached secondary dwelling at 48 Bazentin Street, Belfield. 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 granted leave to rely upon the following documents:

1. Architectural Plans prepared by Masterton Homes, dated 30 March 2016, Plot Date: 16/03/2018, Sheets 1, 1.1, 2, 3, 4, 5, 6, 7.1, 7.2, 7.3, 9, 11.

2. Stormwater Management Plans prepared by StormCivil Pty Ltd, Drawing Nos D1 and D2, Issue C, dated 19/03/2018.

2. The Appeal is upheld.

3. Development Consent is granted to Development Application No. DA-412/2016 for the construction of a double storey dwelling with detached secondary dwelling at 48 Bazentin Street, Belfield, subject to the conditions of consent annexed hereto and marked “Annexure A”.

4. The Applicant is to pay Council’s costs thrown away as a result of the Applicant amending the development application, as agreed or assessed.

……………………….

Commissioner Gray

Annexure A (77.9 KB, pdf)

Plans (2.99 MB, pdf)