Vigor Master Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1002

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vigor Master Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1002
Hearing dates:	Conciliation conference on 1 December 2017
Date of orders:	05 January 2018
Decision date:	05 January 2018
Jurisdiction:	Class 1
Before:	Smithson 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:	Vigor Master Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: Ms I Wang, Litigant in Person (Applicant) Mr J Merlino, HWL Ebsworth (Respondent)
File Number(s):	2017/230627
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 make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. I note also that the Applicant undertakes as part of the agreement to pay the Respondent’s costs to the amount of $3,000.

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 is upheld.

2. The Applicant is granted leave to rely upon the amended plans and documents listed in condition 1 of Annexure "A" hereto.

3. Application No. MOD048/17 for excavation, construction of stairs, retaining walls and a pathway at the Larkin Street frontage of the property, is approved subject to the conditions annexed and marked “A”.

……………………….

Jenny Smithson

Commissioner of the Land and Environment Court of NSW

Annexure A (C) (83.4 KB, docx)