Vigor Master Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1294

Land and Environment Court

New South Wales

Medium Neutral Citation:	VIGOR MASTER PTY LTD v Northern Beaches Council [2017] NSWLEC 1294
Hearing dates:	Conciliation conference on 7 & 8 June 2017
Date of orders:	08 June 2017
Decision date:	08 June 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 LIMITED (Applicant) NORTHERN BEACHES COUNCIL (Respondent)
Representation:	Solicitor: Ms I Wang (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/47207
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 Applicant is granted leave to amend the development application by substituting the following plans and documents as the plans and documents relied upon for the purposes of the development application:

Architectural Plans
Drawing No.	Dated	Prepared By
A001 Issue C	7 June 2017	Vigor Master Pty Ltd
A006 Issue C	7 June 2017	Vigor Master Pty Ltd
A007 Issue C	7 June 2017	Vigor Master Pty Ltd
A101 Issue C	7 June 2017	Vigor Master Pty Ltd
A102 Issue C	7 June 2017	Vigor Master Pty Ltd
A103 Issue C	7 June 2017	Vigor Master Pty Ltd
A104 Issue C	7 June 2017	Vigor Master Pty Ltd
A201 Issue C	7 June 2017	Vigor Master Pty Ltd
A202 Issue C	7 June 2017	Vigor Master Pty Ltd
A203 Issue C	7 June 2017	Vigor Master Pty Ltd
A204 Issue C	7 June 2017	Vigor Master Pty Ltd
A301 Issue C	7 June 2017	Vigor Master Pty Ltd
Landscape Plans
Drawing Number	Dated	Prepared By
A005 Issue C	7 June 2017		Vigor Master Pty Limited
Reports/Documentation
Report/Document	Dated	Prepared By
BASIX Certificate No.749042M	2 August 2016	Thermal Performance
Bushfire Risk Assessment	14 July 2016	Sydney Bushfire Consultants
Waste Management Plan	25 July 2016	Vigor Master Pty Limited

2. The Applicant is to pay the costs thrown away as a result of amending the development application pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the sum of $1,000 within 14 days.

3. The appeal is upheld.

4. Development Application Review No. REV 2016/0025 (DA 2016/0078) for the construction of a dwelling house including secondary dwelling pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 at 7 Utyana Place, Frenchs Forest is determined by approving the plans referred to in condition 1 of Annexure “A” and subject to the conditions of development consent set out in Annexure “A”.

5. The approved plans referred to in 2(d) above are annexed to this agreement in Annexure “B”.

……………………….

Commissioner Smithson

47207.17 Smithson - Annexure A (1.42 MB, pdf)

47207.17 Smithson - Annexure B (3.58 MB, pdf)

Decision last updated: 09 June 2017