Vigor Master Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1729

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vigor Master Pty Ltd v Northern Beaches Council [2017] NSWLEC 1729
Hearing dates:	Conciliation conference on 3, 9, 10, 23 November & 4, 7, 12 December 2017
Date of orders:	18 December 2017
Decision date:	18 December 2017
Jurisdiction:	Class 1
Before:	Chilcott 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) Northern Beaches Council(Respondent)
Representation:	Solicitors: Ms I Wang, Litigant in Person (Applicant) Mr S Patterson, Wilshere Webb Staunton Beattie (Respondent)
File Number(s):	2017/194315
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 modification application, the subject of these proceedings, by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the modification application:

Drawing No.	Dated	Prepared By
S001 Site Plan Revision 2	6.11.2017	Vigor Master Pty Ltd
S101 Building B1 Floor Plans	16.10.2017	Vigor Master Pty Ltd
S102 Building A2 Floor Plans	16.10.2017	Vigor Master Pty Ltd
S103 Building C1 Floor Plans	16.10.2017	Vigor Master Pty Ltd
S104 Building C2 Floor Plans	16.10.2017	Vigor Master Pty Ltd
S105 Floor Plans Reception & Community Centre Revision 2	17.11.2017	Vigor Master Pty Ltd
S204 Reception Elevations	17.11.2017	Vigor Master Pty Ltd
S205 Community Centre Elevations (North - South)	17.11.2017	Vigor Master Pty Ltd
S205 Community Centre Elevations (East – West)	17.11.0217	Vigor Master Pty Ltd
S401 External Finishes and Colours Schedule	17.11.2017	Vigor Master Pty Ltd

Engineering / Erosion Control Plans
Drawing No.	Dated	Prepared By
C001 Drawing Register and Construction Notes	28.11.2017	Bonacci Group
C002 T2 Soil and Water Management Plan Stage 1	14.11.2017	Bonacci Group
C003 T2 Soil and Water Management Plan Stage 2	14.11.2017	Bonacci Group
C004 T2 Soil and Water Management Plan Stage 3	14.11.2017	Bonacci Group
C005 T2 Soil and Water Management Plan Stage 4	14.11.2017	Bonacci Group
C010 T4 Site Stormwater Drainage Plan	28.11.2017	Bonacci Group
C011 T5 Site Works and Stormwater Drainage Plan Sheet 1	28.11.2017	Bonacci Group
C012 T6 Site Works and Stormwater Drainage Plan Sheet 2	28.11.2017	Bonacci Group
C013 T6 Site Works and Stormwater Drainage Plan Sheet 3	28.11.2017	Bonacci Group
C033 T3 Site Works and Stormwater Drainage Details	6.12.2017	Bonacci Group
C050 T3 Road Conrol Line Setout Plan	28.11.2017	Bonacci Group
C051 T4 Road Longitudinal Section Sheet 1	28.11.2017	Bonacci Group
C052 T3 Road Longitudinal Section Sheet 2	28.11.2017	Bonacci Group
C053 T4 Road Longitudinal Section Sheet 3	28.11.2017	Bonacci Group
C060 T5 Road Cross Sections Sheet 1	6.12.2017	Bonacci Group
C061 T5 Road Cross Sections Sheet 2	6.12.2017	Bonacci Group
C062 T4 Road Cross Sections Sheet 3	28.11.2017	Bonacci Group
C063 T4 Road Cross Sections Sheet 4	28.11.2017	Bonacci Group
C064 T4 Road Cross Sections Sheet 5	28.11.2017	Bonacci Group
C065 T4 Road Cross Sections Sheet 6	28.11.2017	Bonacci Group
C066 T4 Road Cross Sections Sheet 7	28.11.2017	Bonacci Group
C067 T4 Road Cross Sections Sheet 8	28.11.2017	Bonacci Group
C068 T3 Road Cross Sections Sheet 9	6.12.2017	Bonacci Group
C080 P5 Cut and Fill Layout	27.11.2017	Bonacci Group
Reports / Documentation – All recommendations and requirements contained within:
Report No. / Page No. / Section No.	Dated	Prepared By
Access / SEPP Compliance Report	28.3.2017	PSE Access Consulting
Basix 799856M	26.2.2017	Thermal Performance
BCA Compatibility Report	March 2017	Sydneywide Engineering
Waste Management Plan	29.3.2017	Vigor Master Pty Ltd

2. Pursuant to s97B of the Environmental Planning and Assessment Act 1979 the applicant is to pay the respondent’s costs thrown away as a result of amending the modification application, the subject of these proceedings as agreed or assessed.

3. The appeal is upheld.

4. Modification Application No. MOD2017/0080 to modify Development Consent No. DA 2009/0800 for the construction of a retirement village comprising 32 units and subdivision on the land at 8 Lady Penrhyn Drive, Beacon Hills NSW, legally identified as Lot 806, DP 752038 is approved subject to the conditions in Annexure “A”.

……………………….

Commissioner Chilcott

Commissioner of the Court

Decision last updated: 19 December 2017