Tyne Damien Archer v City of Sydney Council

[2016] NSWLEC 1417

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tyne Damien Archer v City of Sydney Council [2016] NSWLEC 1417
Hearing dates:	Conciliation conference on 9, 19 August and 1, 8, September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Tyne Damien Archer (Applicant) Council of the City of Sydney (Respondent)
Representation:	Mr C Farah, Yates Beaggi Lawyers (Applicant) Mr P Canning, Council of the City of Sydney (Respondent)
File Number(s):	2016/154613
Publication restriction:	No

Judgment

1. COMMISSIONER: 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”.

2. 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.

3. 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.

4. 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 rely on the amended plans as referred to in the conditions of consent contained in Annexure “A”.

2. Pursuant to clause 4.6 of Sydney Local Environmental Plan 2012 (SLEP 2012), the applicant’s written request has adequately demonstrated that, based on the amended plans:

(i) compliance with clause 4.4 Floor Space Ratio of SLEP 2012 would be unreasonable or unnecessary in the circumstances;

(ii)   there are sufficient environmental planning grounds to justify contravening the development standard; and

(iii) the proposed development will be in the public interest because it is consistent with the objectives of clause 4.4 of SLEP 2012 and the objectives for development within the R1 General Residential zone.

3. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the sum of $3,000.

4. The appeal is upheld.

5. Development application No. D/2015/433 lodged on 7 April 2015 for alterations and additions to a dwelling house including new first floor rear addition and attic conversion with new front dormer window is approved subject to the conditions contained in Annexure “A”.

……………………..

Annelise Tuor

Commissioner

154613.16 Tuor (C) (168 KB, pdf)

154613.16 Tuor - Plans (753 KB, pdf)