Fantastic Holdings Limited v Willoughby City Council [2016] NSWLEC 1241

Land and Environment Court New South Wales

Medium Neutral Citation: Fantastic Holdings Limited v Willoughby City Council [2016] NSWLEC 1241 Hearing dates: Conciliation conference on 27 May & 3 June 2016 Date of orders: 03 June 2016 Decision date: 03 June 2016 Jurisdiction: Class 1 Before: Hussey AC Decision: See (4) below Catchwords: Section 121B Order: Large factory unit, bulky goods warehouse, prohibited use, traffic/access safety, BCA compliance; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Fantastic Holdings Limited (Applicant) Willoughby City Council (Respondent) Representation: Counsel: Scott Nash (Applicant) Kirsten Gerathy (Respondent)

Solicitors: Mr D Arraj, Blackstone Waterhouse Lawyers (Applicant) Ms K Gerathy, HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/151546 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 in part. 2. Order No. 1 and 15 dated 13 November 2015 issued by the Respondent to 'Fantastic Holdings Limited' relating to the premises at No. 73 Reserve Road, Artarmon, is modified as follows: 1. The addressee is modified by deleting the words 'Fantastic Holdings Pty Limited' and replacing those words with: 'Fantastic Holdings Limited'; 2. Paragraph 1 in the 'Schedule of Works/Action' is modified by deleting the words 'by 30 June 2016' and replacing those words with: 'by 31 October 2016; 3. Paragraph 2 in the 'Schedule of Works/Action' is modified by inserting the words 'Subject to paragraph 5 below' at the commencement of paragraph 2; 4. Insert new paragraphs 5 and 6 in the 'Schedule of Works/Action' as follows: 5 Despite paragraphs 2 and 3 above, Fantastic Holdings Limited is to comply with the traffic management plan dated 3 June 2016. 6 Fantastic Holdings Limited is to carry out the works recommended in paragraph 1.1, item 5 of the Building Code Report dated 20 May 2016 by 30 June 2016. ……………. R Hussey Acting Commissioner 151546.16 Hussey_Traffic Management Plan (17.0 KB, pdf)