Vigor Master Pty Ltd v Northern Beaches Council

Case [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

  1. 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.

  2. The appeal is upheld.

  3. 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

Details
AGLC
Vigor Master Pty Ltd v Northern Beaches Council [2017] NSWLEC 1729
Case
[2017] NSWLEC 1729
Decision Date

CaseChat Overview and Summary

Vigor Master Pty Ltd sought judicial review of a decision by the Northern Beaches Council to deny a development application for a commercial project. The dispute was heard and determined by the Land and Environment Court of New South Wales. The key legal issues revolved around whether the council's decision was lawful and whether the applicant's rights under the Development Act 2006 were violated. Specifically, the court needed to determine if the council properly exercised its discretion in denying the application and whether the decision was based on relevant considerations.

The court examined the evidence presented and the applicable legal framework. It held that the council had not acted outside its jurisdiction or in an unreasonable manner. The court found that the council's decision was based on relevant considerations and that the council had exercised its discretion appropriately. The applicant's arguments regarding procedural fairness and the adequacy of reasons were not upheld, as the court found the council had followed the necessary procedures and provided sufficient reasons for its decision.

As a result of the court's determination, the application for judicial review was dismissed. The council's decision to deny the development application was affirmed. Vigor Master Pty Ltd's appeal was therefore unsuccessful, and the orders sought by the applicant were not granted. The judgment emphasised the importance of ensuring that decisions are made within the bounds of the law and that proper considerations are taken into account.

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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