Zeitouni v Inner West Council (No.2)

[2016] NSWLEC 1320

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zeitouni & anor v Inner West Council (No.2) [2016] NSWLEC 1320
Hearing dates:	Conciliation conference on 2 August 2016
Date of orders:	08 August 2016
Decision date:	08 August 2016
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	See (4) below
Catchwords:	SECTION 121B ORDER; compliance with development consent; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	David and Melissa Zeitouni (Applicants) Inner West Council (Respondent)
Representation:	Applicants: Mr A Seton (Solicitor) Respondent: Mr S Turner (Solicitor)     Solicitors: Applicants: Marsdens Law Group Respondent: Inner West Council
File Number(s):	159398 of 2016
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, 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 appeal is upheld.

2. The order given by the Respondent to Applicants dated 12 November 2015 in terms of order No. 15 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the premises described as 77 Foster Street, Leichhardt NSW 2040 (Part Lot 1 DP 599044), a copy of which is attached as Annexure A to these Orders, is modified as follows:

1. Delete the words:

“The Order: Comply with Development Consent and associated plans referenced D/2014/20 – M/2014/98, and remove the metal fence and gate that has been erected at the premises.

From the date of this Order, you will have 28 days to comply.”

and insert instead:

“The Order: Remove the metal fence and gate that has been erected on the northern side of the premises between the eastern facade of the dwelling and the eastern boundary.

This Order is to be complied with by 5pm on 6 February 2017.”

The Court notes the agreement between the parties that there be no order as to costs.

______________________

Judy Fakes

Commissioner of the Court

159398.16 Annexure A (175 KB, pdf)