Wiesener v North Sydney Council

[2018] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wiesener v North Sydney Council [2018] NSWLEC 1353
Hearing dates:	Conciliation conference on 6, 9 July 2018
Date of orders:	10 July 2018
Decision date:	10 July 2018
Jurisdiction:	Class 1
Before:	Walsh 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:	Kathryn Wiesener (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: J Reid (Applicant) Solicitors: Landerer & Company (Applicant) S Shneider, Houston Dearn O’Connor (Respondent)
File Number(s):	2018/19029
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to rely amended plans being those plans listed at Condition A4 of Annexure “B” to this agreement.

2. The Appeal is upheld.

3. Development Consent given in respect of DA 2/17 being a consent that was determined by the Respondent Council on 7 June 2017 for the substantial demolition of the existing dwelling and the construction of a new part 2, part three storey dwelling with a double garage on land described as 36 Ellalong Road is hereby amended in terms set out at Annexure “A” to the agreement.

……………………….

P Walsh

Commissioner of the Court

Annexure A (75.1 KB, pdf)

Annexure B (225 KB, pdf)

Plans (3.37 MB, pdf)