Vigor Master Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1026

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vigor Master Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1026
Hearing dates:	Conciliation conference on 23 January 2018
Date of orders:	23 January 2018
Decision date:	23 January 2018
Jurisdiction:	Class 1
Before:	Commissioner Gray
Decision:	See (6) below
Catchwords:	MODIFICATION APPLICATION – deferred commencement condition - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Vigor Master Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: I Wang, Solicitor (Applicant) P Merlino, Solicitor (Respondent) Solicitor: HWL Ebsworth (Respondent)
File Number(s):	2017/135590
Publication restriction:	No

Judgment

1. COMMISSIONER: On 3 August 2016, as a result of an agreement reached between Vigor Master Pty Ltd (“Vigor Master”) and Ku-ring-gai Council, the Court made orders granting development consent for the demolition of a dwelling and construction of a boarding house containing 21 boarding rooms (including a manager's room) at 5 Sixth Mile Lane, Roseville (see Vigor Master Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1369).

2. The consent includes a deferred commencement condition requiring that agreement be obtained from the beneficiaries of a right of way regarding the arrangements during the construction period. Vigor Master applied to the Council to modify the consent to remove that deferred commencement condition. The present proceedings are an appeal by Vigor Master against the Council’s refusal of the modification application.

3. 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”.

4. 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.

5. 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.

6. 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. Application No. MOD0211/16 to delete the deferred commencement condition of DA 0255/16 approved in Land and Environment Court proceedings Proceeding No.150626 of 2016, is approved and the development consent is now subject to the conditions annexed and marked “A”.

……………………….

Commissioner Gray

Annexure A (372 KB, pdf)

Plans (315 KB, pdf)