The Owners of SP 91769 v Northern Beaches Council

[2016] NSWLEC 1511

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners of SP 91769 v Northern Beaches Council [2016] NSWLEC 1511
Hearing dates:	Conciliation conference on 8 July, 29 July, 17 August, 8, 29 September 2016
Date of orders:	20 October 2016
Decision date:	20 October 2016
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See (5) below
Catchwords:	ORDER: construct landscaping in accordance with approved landscape plan; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	The Owners of SP 91769 (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: Ms P Murray, DibbsBarker (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/00153080
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against an Order issued by Northern Beaches Council to construct landscaping in accordance with the approved landscape plan at 56-58 Gordon Street Manly Vale.

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 under s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld in part.

2. The Order issued by the Respondent on 26 February 2016, pursuant to Section 1218 of the Environmental Planning and Assessment Act 1979 ("the Act"), reference number EPA 2016/0002, ("the Order) be modified pursuant to s.121ZK(4)(b) of the Act to require the Applicant to carry out the following works only along the eastern boundary of the residential development at 56-58 Gordon Street Manly Vale, as shown on the Landscape Plan prepared by Marchese Partners, numbered S96 01.012 revision P4, dated 26.05.2016, annexed hereto and referred to as "A", being the installation of 3 split-face plantar boxes (1.0 x 1.0 x 0.6m high) outside unit 6 complete with frangipani planting and the installation of a 1.8m high powder-coated aluminium screen to match the existing building, within 30 days of this document being sealed by the Court.

3. The Applicant to pay the Respondent's costs in the sum of $5,500.00 (five thousand and five hundred dollars) within 14 days of this document being sealed by the Court.

…………….

Annelise Tuor

Commissioner

Decision last updated: 03 November 2016