Vickery v Kiama Municipal Council

[2018] NSWLEC 1477

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vickery v Kiama Municipal Council [2018] NSWLEC 1477
Hearing dates:	Conciliation conference on 3 – 4 September 2018
Date of orders:	06 September 2018
Decision date:	06 September 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – dual occupancy - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Joanna Christine Vickery (1st Applicant) Kirsty Lyn Fay (2nd Applicant) Kiama Municipal Council (Respondent)
Representation:	Counsel: S Nash (Applicants) Solicitors: Planning Development Commercial Lawyers (Applicants) P Holland, McCullough Robertson (Respondent)
File Number(s):	2018/74067
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Joanna Christine Vickery and Kirsty Lyn Fay against the actual refusal by Kiama Municipal Council of Development Application No. DA-10.2017.241.1. The application is seeking consent for the construction of an attached dual occupancy and two (2) lot Torrens title subdivision at 11 Northpoint Place, Bombo (Lot 16 DP1206612).

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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The Appeal is upheld.

2. Development application No. 10.2017.241.1, for the construction of an attached dual occupancy and two lot Torrens title subdivision on the land described as Lot 16 in Deposited Plan 1206612 also known as 11 Northpoint Place, Bombo, is approved subject to the conditions in Annexure ‘A’ hereto.

……………………….

Commissioner Gray

Annexure A (218 KB, pdf)