Trend Living Pty Ltd v Northern Beaches Council

[2018] NSWLEC 1215

Land and Environment Court

New South Wales

Medium Neutral Citation:	Trend Living Pty Ltd v Northern Beaches Council [2018] NSWLEC 1215
Hearing dates:	Conciliation conference on 4 May 2018
Date of orders:	04 May 2018
Decision date:	04 May 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Trend Living Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: G McKee, McKees Legal Solutions (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/135399
Publication restriction:	No

Judgment

1. COMMISSIONER: This in application by Trend Living Pty Ltd against the deemed refusal by Northern Beaches Council pursuant to Section 97(1)(b) of the Environmental Planning and Assessment Act 1979, to grant consent to Development Application number DA2017/0256 for excavation works and the construction of a mixed use building containing self-storage units and industrial warehouse units in relation to Lot 27 in Deposited Plan 28882 and Lot 9 in Deposited Plan 201553 being 69 Middleton Road & 6 Villiers Place, Cromer.

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 applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 a) of Annexure "A".

2. The Appeal is upheld.

3. Development Application No. DA2017/0256 for excavation works and construction of a mixed use building containing self-storage units and industrial warehouse units at 69 Middleton Road and 6 Villiers Place, Cromer is approved subject to the conditions set out in Annexure "A" to this agreement.

4. The Applicant is to pay the Respondent's costs arising under s8.15 of the Environmental Planning and Assessment Act 1979 in the amount as agreed or assessed.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (140 KB, pdf)