Tyson v Ku-ring-gai Council [2020] NSWLEC 1264

Land and Environment Court New South Wales

Medium Neutral Citation: Tyson v Ku-ring-gai Council [2020] NSWLEC 1264 Hearing dates: Conciliation conference on 5 February 2020; 26 March 2020; 29 May 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application to rely upon the plans referred to in condition 1 of Annexure A. (2) The appeal is upheld. (3) Development Application DA0078/19 for demolition of existing structures and construction of residential flat building at 14A, 14B and 16 Park Crescent, Pymble is approved subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Lynnette Tyson (First Applicant) Zhen Yang (Second Applicant) Rick Yu-Hsieh Peng (Third Applicant) Ku-ring-gai Council (Respondent) Representation: A Sattler (Solicitor) (Applicants) J Hones (Solicitor) (Respondent)

Solicitors: Sattler & Associates (Applicants) Hones Lawyers (Respondent) File Number(s): 2019/167690 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the Council's refusal of Development Application No. DA0078/19 for demolition of existing structures and construction of a residential flat building, basement parking, landscaping and associated works at the properties known as 14A, 14B & 16 Park Crescent, Pymble ("the site"). The application was lodged with the Respondent on 5 March 2019. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 5 February, 26 March and 29 May 2020. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions in Annexure A. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application on a conditional basis. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 5. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, an as required by s 34(3) of the LEC Act I will now dispose of the proceedings in accordance with the parties' decision. 6. The Court orders that: 1. The Applicant is granted leave to amend the development application to rely upon the plans referred to in condition 1 of Annexure A. 2. The appeal is upheld. 3. Development Application DA0078/19 for demolition of existing structures and construction of residential flat building at 14A, 14B and 16 Park Crescent, Pymble is approved subject to the conditions in Annexure A.