Tom Baxter v Northern Beaches Council

[2017] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tom Baxter v Northern Beaches Council [2017] NSWLEC 1179
Hearing dates:	Conciliation Conference 31 March 2017
Date of orders:	06 April 2017
Decision date:	06 April 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: 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:	Tom Baxter (Applicant) Northern Beaches Council (Respondent)
Representation:	Ms E Gentle, King and Wood Mallesons (Applicant) Mr M Sonter, Mills Oakley (Respondent)
File Number(s):	2016/372731
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Modification Application No. N0209/14/S96/3, which seeks to modify development consent DA N0209/14/96/2 for a 22 lot community title subdivision at 2 Fern Creek Road, Warriewood.

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 make, 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.

2. Modification Application No. N0209/14/S96/3, which seeks to modify development consent DA N0209/14/96/2 for a 22 lot community title subdivision at 2 Fern Creek Road, Warriewood, to delete condition C3(vi) and amend condition F1 which require the undergrounding of existing 33Kv transmission lines in front of the site to be relocated underground, is approved subject to conditions as set out in Annexure “A”.

3. Each party to pay its own costs.

…………….

G Brown

Commissioner

372731.16 Annexure A (77.5 KB, pdf)