Top One Pty Ltd v Parramatta City Council

[2018] NSWLEC 1201

Land and Environment Court

New South Wales

Medium Neutral Citation:	Top One Pty Ltd v Parramatta City Council [2018] NSWLEC 1201
Hearing dates:	Conciliation conference on 28 February and 11 April 2018
Date of orders:	23 April 2018
Decision date:	23 April 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	MODIFICATION APPLICATION – trial period - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Top One Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: J Doyle (Applicant) Solicitors: O’Brien Criminal and Civil Solicitors Pty Ltd (Applicant) Sparke Helmore (Respondent)
File Number(s):	2017/254517
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an application Top One Pty Ltd to modify development consent DA/5/2008/E by removing condition 2, which limited the use of premises at 1 Nirvana Street, Pendle Hill, for the purpose of a brothel to a two year trial period.

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 in respect of the property known as Lot 6 in DP 16541 at 1 Nirvana Street, Pendle Hill, is upheld.

2. Modification Application No. DA 5/2008/E to modify Development Consent DA/5/2008 to remove the two-year trial period referred to in Condition 2 is determined by approving the modifications set out in Annexure “A”.

3. As a consequence of order (2), development consent DA/5/2008 is now subject to the consolidated modified conditions of the development consent set out in Annexure “B” and associated changes to the Plan of Management referred to in those conditions as reflected in Annexure “C”.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (84.5 KB, pdf)

Annexure B (197 KB, pdf)

Annexure C (359 KB, pdf)

Decision last updated: 24 April 2018