Wilson Chen v Northern Beaches Council

[2016] NSWLEC 1597

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wilson Chen v Northern Beaches Council [2016] NSWLEC 1597
Hearing dates:	Conciliation conference on September 21 2016
Date of orders:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL under s97(1)(a) against refusal; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Wilson Chen (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Ms M Carpenter (Respondent) Ms J Reid (Applicant)
File Number(s):	2016/00243622
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) (a) of the Environmental Planning and Assessment Act 1979, against the refusal by Northern Beaches Council of application number N0002/15. The Development Application sought approval for the demolition of the existing dwelling and construction of a new childcare centre, with basement parking.

2. 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”.

3. The Court Act also requires 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.

4. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The final orders to give effect to the parties’ agreement are:

1. The Applicant is granted leave to amend the development application to rely upon the following plans and information:

2. The appeal is upheld;

3. Development Application No. N0002/15 for the demolition of existing dwelling and shed and constructions of new 2 storey childcare centre with basement parking at 168 Garden Street, North Narrabeen is approved subject to the conditions in Annexure A.

4. As a consequence of order 2(a) and pursuant to section 97B of the Environment Planning and Assessment Act 1979, the Applicant is ordered to pay the Respondent’s costs thrown away as a result of amending the development application, being $12,121.16.

…………….

D M Dickson

Commissioner of the Court

243622.16 Dickson (C) (1.17 MB, pdf)