Vigor Master Pty Ltd v Ku-ring-gai Council

[2017] NSWLEC 1471

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vigor Master Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1471
Hearing dates:	Conciliation conference on 29 & 30 August 2017
Date of orders:	30 August 2017
Decision date:	30 August 2017
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, Vigor Master (Applicant) Mr P Merlino, KWL Ebsworth Lawyers (Respondent)
File Number(s):	2017/125223
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. 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; and

3. Application No. DA0419/16 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”.

4. The Applicant is to pay the Respondent's costs pursuant to s97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

……………………………..……

Commissioner Jenny Smithson

125223.17 Smithson (C) (189 KB, pdf)

125223.17 Smithson - Plans (6.08 MB, pdf)