Warringah Development Pty Limited v Warringah Council [2016] NSWLEC 1251

Land and Environment Court New South Wales

Medium Neutral Citation: Warringah Development Pty Limited v Warringah Council [2016] NSWLEC 1251 Hearing dates: Conciliation conference on 23 December 2015, 26 February, 30 March, 15 April and 11 May 2016 Date of orders: 17 June 2016 Decision date: 17 June 2016 Jurisdiction: Class 1 Before: Morris 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: Warringah Rd Development Pty Limited(Applicant) Warringah Council (Respondent) Representation: Solicitors: Mr J Hones Hones Lawyers (Applicant) Mr S Patterson Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/157975 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 Applicant is granted leave to rely upon the plans set out in operational condition 1 to annexure "A". 2. The Applicant is to pay the Respondents costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed. 3. The appeal is upheld. 4. Development Consent be granted to DA2015/0652 for demolition of all existing buildings and construction of a new Childcare Centre, Preschool and associated parking at 723-727 Warringah Road, Forestville, NSW 2087, subject to the conditions in annexure "A". ……………. Sue Morris Commissioner 157975.2016 Morris (C Annexure A) (253 KB, pdf) A010 - ENVELOP STUDY - SITE PLAN [D] (1.55 MB, pdf) A011 - ENVELOPE STUDY - SECTIONS 01 [D] (2.05 MB, pdf) A201 - PROPOSED UPPER ARCADE (1.49 MB, pdf) A202 - PROPOSED LEVEL 1 [E] (947 KB, pdf) A203 - PROPOSED LEVEL 2 [E] (989 KB, pdf) A204 - PROPOSED ROOF [E] (993 KB, pdf) A250 - PART PLAN - PROPOSED LOWER ARCADE - NORTH [F] (562 KB, pdf) A252 Rev C (1.08 MB, pdf) A253 Rev C (365 KB, pdf) A254 - PART PLAN - PROPOSED LEVEL1 - NORTH (821 KB, pdf) A255 - PART PLAN - PROPOSED LEVEL 1 - SOUTH [F] (1.32 MB, pdf) A256 - PART PLAN - PROPOSED LEVEL 2 - SOUTH [E] (514 KB, pdf) A257 - PART PLAN - PROPOSED ROOF [D] (535 KB, pdf) A351 - DETAILED ELEVATION PROPOSED WEST [E] (1.63 MB, pdf) A352 - DETAILED ELEVATION PROPOSED EAST [E] (1.67 MB, pdf) A530 - PROPOSED LANDSCAPE AREAS [E] (1.46 MB, pdf) Landscape - Forestville back area ISSUE 4 (1.42 MB, pdf) A200 - PROPOSED LOWER ARCADE [H] (524 KB, pdf) A251 - PART PLAN - PROPOSED LOWER ARCADE - SOUTH [E] (284 KB, pdf) A350 - DETAILED ELEVATION PROPOSED NORTH-SOUTH [E] (1.83 MB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2016