Stephen William Peam v Northern Beaches Council

[2016] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stephen William Peam v Northern Beaches Council [2016] NSWLEC 1557
Hearing dates:	Conciliation conference on 22, 28 September & 14 November 2016
Date of orders:	21 November 2016
Decision date:	21 November 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See (4) below
Catchwords:	APPEAL AGAINST SECTION 121B ORDERS: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Stephen William Peam (First Applicant) Rosslyn Margaret Morrison (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr P Larkin (Applicant) - Solicitors: Ms S Hill, Hones Lawyers (Applicant) Mr A Gough, Storey & Gough Lawyers (Respondent)
File Number(s):	2016/170553
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. An order that pursuant to section 121ZK(4)(b) of the Environmental Planning and Assessment Act 1979 (NSW), the Order issued by the Respondent to the Applicants dated 10 May 2016 is modified as set out in these orders.

3. These Orders are made pursuant to s121B (Order Number 4(b)) of the Environmental Planning and Assessment Act 1979 (NSW).

4. Within 35 weeks of the date of these Orders the Applicants are to construct a sandstone block revetment, associated earthworks and landscaping in accordance with the conditions in Annexure A attached to this Agreement upon Lot 412 in DP 752017, known as 12 Killawarra Road, Duffys Forest NSW to the satisfaction of the Respondent.

5. Liberty is granted to apply to vary the Orders including for the following purposes:

1. if it is necessary or appropriate for other or further detail to be provided for by the Orders;

2. in the event of any additional recommendations being made by the Applicants’ expert advisers including in relation to latent conditions or presently unforeseen circumstances;

3. in the event of any delays to the carrying out of the works the subject of the Orders due to matters outside of the Applicant’s control.

……………………………

Commissioner Smithson

170553.16 Smithson (C) (146 KB, pdf)

170553.16 Smithson - Expert Report.September 2016 (1.05 MB, pdf)

170553.16 Smithson - Landscape Plan rev C (274 KB, pdf)

170553.16 Smithson - Remedial Earthworks Design - November 2016 (5.31 MB, pdf)