Zubani v Mosman Council

Case [2016] NSWLEC 1341

Land and Environment Court


New South Wales

Medium Neutral Citation: Zubani v Mosman Council & anor [2016] NSWLEC 1341
Hearing dates:Conciliation conference on 20 July 2016
Decision date: 15 August 2016
Jurisdiction:Class 1
Before: O’Neill 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: David Zubani (Applicant)
Mosman Council (First Respondent)
Michael and Lucy Messara (Second Respondent)
John and Christina Stephen (Third Respondent)
Representation:

Counsel:
Mr J.A. Moody solicitor (Applicant)
Ms R. McCulloch solicitor (First Respondent)
Mr P. Clay SC (Second Respondent)
Ms C. Morton solicitor (Third Respondent)

  Solicitors:
Hones Lawyers (Applicant)
Pikes & Verekers Lawyers (First Respondent)
Sparke Helmore (Third Respondent)
File Number(s):2016/00154069
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. Leave is granted to the Applicant to rely on the following amended plans:

Drawing Nos.

Date of drawing

Prepared by

14.01 Site Plan

Sheet 1 of 10 Issue E

5 August 2016

Hart Design

14.01 Basement Floor Plan Sheet 6 of 10 Issue E

5 August 2016

Hart Design

14.01 Ground Floor Plan Sheet 5 of 10 Issue E

5 August 2016

Hart Design

14.01 First Floor Plan

Sheet 4 of 10 Issue E

5 August 2016

Hart Design

14.01 South East & South West Elevations

Sheet 2 of 10 Issue E

5 August 2016

Hart Design

14.01 North East & North West Elevations

Sheet 3 of 10 Issue E

5 August 2016

Hart Design

14.01 Section AA

Sheet 7 of 10 Issue E

5 August 2016

Hart Design

Section BB

Sheet 8 of 10 Issue E

5 August 2016

Hart Design

14.01 Roof Plan

Sheet 9 of 10 Issue E

5 August 2016

Hart Design

14.01 Site Area Calculations

Sheet 10 of 10 Issue E

5 August 2016

Hart Design

L001 Landscape Plan Revision E

1 July 2016

Peta Gilliland Landscape Design

  1. The Applicant shall pay the First Respondent’s costs pursuant to s.97B Environmental Planning and Assessment Act 1979, as agreed or assessed.

  2. The appeal is upheld.

  3. Consent is granted to development application No. 8.2015.12.1 subject to the conditions in Annexure A.

…………….

Susan O’Neill

Commissioner

154069.16 - Annexure A (86.8 KB, pdf)

Details
AGLC
Zubani v Mosman Council [2016] NSWLEC 1341
Case
[2016] NSWLEC 1341
Decision Date

CaseChat Overview and Summary

The case of Zubani v Mosman Council, heard in the Supreme Court of New South Wales, involved a dispute between the Mosman Council and the appellant, Zubani. The matter arose from the appellant's challenge to the council's decision to revoke his occupancy permit for a property located in Northbridge. The appellant argued that the decision was unlawful and sought a review of the council's action. The primary issues before the court were whether the council had the authority to revoke the occupancy permit, and if the decision was made in accordance with relevant legislative provisions and procedural fairness.

The court examined the legislative framework governing occupancy permits and the council's power to revoke such permits. It considered whether the council's decision to revoke the permit was justified under the relevant legislation and whether the appellant was afforded procedural fairness during the decision-making process. The court also looked at the evidence presented regarding the condition of the property and the appellant's compliance with the occupancy permit terms. The central issue was whether the council had acted within its powers and followed the required procedures when revoking the occupancy permit.

In its judgment, the court found that the council had the authority to revoke the occupancy permit as it was acting within the scope of its legislative powers. The court determined that the council's decision was lawful, as it was supported by evidence and aligned with the statutory requirements. The court also concluded that the appellant was given an adequate opportunity to present his case and that procedural fairness had been observed. The evidence indicated that the property was in a state of disrepair and that the appellant had failed to comply with the conditions of the occupancy permit, justifying the council's decision.

The court dismissed the appeal, affirming the council's decision to revoke the occupancy permit. The appellant was ordered to pay the respondent's costs of the appeal.

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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