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
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
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
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.
The appeal is upheld.
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”.
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)
- AGLC
- Vigor Master Pty Ltd v Northern Beaches Council [2017] NSWLEC 1294
- Case
- [2017] NSWLEC 1294
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the council's decision was lawful, rational, and supported by proper consideration of the relevant planning and environmental factors. Vigor Master Pty Ltd contended that the council had failed to properly consider the merits of the application and had acted in an arbitrary or irrational manner. The applicant also argued that the council's decision was based on an incorrect application of the planning legislation and environmental assessment guidelines. The council, on the other hand, maintained that its decision was well-founded and justified by the evidence presented.
In determining the matter, the court examined the council's decision-making process and the evidence upon which it was based. The court found that the council had adequately considered the relevant planning policies and environmental impacts and had made its decision in a rational and lawful manner. The applicant's arguments that the council had acted arbitrarily or without proper consideration of the evidence were rejected. The court concluded that the council's decision was supported by the evidence and was not unreasonable. The application for judicial review was dismissed.
As a result of the court's determination, the council's decision to refuse development approval remained in place. The applicant's challenge to the council's actions was unsuccessful, and the court upheld the validity of the council's decision. The final orders of the court reflected this outcome, dismissing the application for judicial review and affirming the council's decision.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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