Vigor Master Pty Ltd v Ku-ring-gai Council

[2016] NSWLEC 1369

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vigor Master Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1369
Hearing dates:	Conciliation conference on 1 April, 13 May, 29 June, 29 July, 3 August 2016
Date of orders:	03 August 2016
Decision date:	03 August 2016
Jurisdiction:	Class 1
Before:	Hussey AC
Decision:	See (4) below
Catchwords:	Development application: Demolition of existing dwelling & construction of a 25 room, 5 level boarding house; character of the area, height, private open space, impact on right-of-way, access, stormwater; 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: Ivy Wang, Vigor Master Pty Ltd (Applicant) John Merlino, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/00150626
Publication restriction:	No

Judgment

1. ACTING 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 appeal is upheld.

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

3. Application No. DA0255/15 for the demolition of an existing dwelling and construction of a boarding house containing 21 boarding rooms (including a manager's room), is approved subject to the conditions annexed and marked “A”.

4. The Applicant is to pay the Respondent's costs thrown away by reason of the amended plans and documents listed in condition 1 of Schedule B in Annexure "A" hereto under section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

…………….

R Hussey

Acting Commissioner

150626.16 - Annexure A (196 KB, pdf)