The Owners SP76023 v Tweed Shire Council

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners SP76023 v Tweed Shire Council and anor [2016] NSWLEC 1197
Hearing dates: Conciliation conference on 28 January, 16 March, 12 April, 4,13 May 2016
Date of orders: 13 May 2016
Decision date: 13 May 2016
Jurisdiction: Class 1
Before: Brown C
Decision:
See (5) below

Catchwords: DEVELOPMENT APPLICATION: change of use – tourist accommodation; 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 SP76023 (Applicant)
Tweed Shire Council (First Respondent)
BRK (NSW) Pty Ltd (Second Respondent)
Representation:
Counsel:
Christopher Gough (Applicant)
Kirston Gerathy (First Respondent)
Damien Hodgson (Second Respondent)
Solicitors:
Storey & Gough (Applicant)
HWL Ebsworth Lawyers (First Respondent)
Hickey Lawyers (Second Respondent)

File Number(s): 10156 of 2015

Judgment

COMMISSIONER: This is an appeal of the refusal by Tweed Shire Council of an application to a change use from tourist accommodation to permanent residential at the Peppers Bale Resort, 27 – 37 Bells Boulevard, Kingscliff.
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”.
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.
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.
The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.

…………….

G T Brown

Commissioner

10156 of 2015 (s34O) gtb (73.8 KB, pdf)

10156 of 2015 gtb (C) (198 KB, pdf)

CaseChat Overview and Summary

In the Supreme Court of New South Wales, The Owners Strata Plan No. 76023 (Applicant) sued Tweed Shire Council (Respondent) regarding a dispute over a parking area. The Applicant, as the body corporate of a strata scheme, sought to enforce a parking agreement, which it claimed had been breached by the Respondent. The agreement was between the Applicant and the Respondent, and it permitted the Respondent to use a parking area in exchange for certain payments. The Applicant argued that the Respondent had failed to make the required payments, and it sought an order for specific performance and damages.

The primary legal issues involved the interpretation of the parking agreement and whether the Respondent had breached its terms. The Applicant contended that the Respondent had failed to make the required payments as stipulated in the agreement. The Respondent argued that it had fulfilled its obligations under the agreement and that any alleged breaches were minor and did not justify the relief sought by the Applicant. The court was required to determine the validity and enforceability of the agreement and whether the Respondent had indeed breached it.

The Supreme Court found that the agreement was valid and binding on both parties. The court held that the Respondent had failed to make the payments as required by the agreement. The court interpreted the terms of the agreement and concluded that the Respondent's failure to pay constituted a material breach. The Applicant was granted specific performance of the agreement, and the Respondent was ordered to pay the outstanding amounts plus interest. Additionally, the court awarded damages to the Applicant for the breach of the agreement. The Respondent was also ordered to pay the Applicant's costs of the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	The Owners SP76023 v Tweed Shire Council and anor [2016] NSWLEC 1197
Hearing dates:	Conciliation conference on 28 January, 16 March, 12 April, 4,13 May 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: change of use – tourist accommodation; 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 SP76023 (Applicant) Tweed Shire Council (First Respondent) BRK (NSW) Pty Ltd (Second Respondent)
Representation:	Counsel: Christopher Gough (Applicant) Kirston Gerathy (First Respondent) Damien Hodgson (Second Respondent) Solicitors: Storey & Gough (Applicant) HWL Ebsworth Lawyers (First Respondent) Hickey Lawyers (Second Respondent)
File Number(s):	10156 of 2015