Land and Environment Court
New South Wales
Medium Neutral Citation: Vigor Master Pty Ltd v Northern Beaches Council [2018] NSWLEC 1409 Hearing dates: Conciliation conference on 27 July 2018; 3 August 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Class 1 Before: Froh R 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)
Northern Beaches Council (Respondent)Representation: Solicitors:
I Wang, Vigor Master Pty Ltd (Applicant)
K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2018/72917 Publication restriction: No
Judgment
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REGISTRAR: 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 officer, 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 s 34(3) of the Land and Environment Court Act 1979 are:
The Applicant is given leave to amend the modification application MOD 2017/0162 by substituting the following plans and documents as the plans and documents relied upon for the purposes of the development application:
Plans
Parking Floor Plan
M-200 Issue E dated 30/7/2018
Ground Floor Plan
M-201 Issue E dated 30/7/2018
First Floor Plan
M-202 Issue E dated 30/7/2018
South and North Elevations Plan
M-301 Issue E dated 30/7/2018
East and West Elevations Plan
M-302 Issue E dated 30/7/2018
All prepared by Vigor Master
Documents
Plan of Management – Boarding House
Lot 2506 Bundaleer Street, Belrose dated 30 July 2018 prepared by Vigor Master Pty Ltd
The appeal is upheld.
Development consent is granted to Modification Application No. MOD 2017/0162 for alterations and additions to the existing boarding house by the conversion of four (4) approved basement level storerooms into boarding units together with modifications to the Plan of Management at Lot 2506 Bundaleer Street, Belrose subject to the conditions annexed to this Agreement at “A” and the amended plans annexed to this Agreement at “B”.
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Sarah Froh
Registrar of the Court
Annexure A (215 KB, pdf)
Annexure B (1.89 MB, pdf)
- AGLC
- Vigor Master Pty Ltd v Northern Beaches Council [2018] NSWLEC 1409
- Case
- [2018] NSWLEC 1409
- Decision Date
CaseChat Overview and Summary
The primary legal issue that the court had to resolve was whether the building permit issued by the council had indeed lapsed, and if so, whether the council had the authority to refuse the applicant's request for an extension of time to commence construction. The applicant argued that the permit had lapsed due to inactivity and that the council had no power to impose conditions that would result in the forfeiture of the permit. The respondent, on the other hand, maintained that the permit had not lapsed and that the council had the authority to impose and enforce conditions under the relevant legislation.
The court found that the building permit had not lapsed and that the council had the authority to impose conditions on the permit, including the condition that the construction must commence within a specified timeframe. The court held that the council's decision to refuse the applicant's request for an extension of time was valid, as the applicant had failed to demonstrate any exceptional circumstances that would warrant an extension. The court further found that the applicant had not established any grounds for the permit to be considered lapsed, and therefore, the council's actions were justified under the statutory framework.
In conclusion, the court rejected the applicant's claims and upheld the council's decision to refuse the extension of time for the commencement of construction. The court held that the building permit remained valid, and the council had the authority to impose and enforce conditions on the permit. The orders made by the court were that the applicant's claims were dismissed, and the council's decision to refuse the extension of time was upheld. Additionally, the court ordered the applicant to pay the council's costs of the proceedings.
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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