Maygood Australia Pty Ltd v Willoughby City Council [2016] NSWLEC 1304

Land and Environment Court New South Wales

Medium Neutral Citation: Maygood Australia Pty Ltd v Willoughby City Council [2016] NSWLEC 1304 Hearing dates: Conciliation conference on 12 May 2016 and 29 June 2016 Date of orders: 19 July 2016 Decision date: 19 July 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: ORDER: use of building for secondary dwelling; 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: Maygood Australia Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Counsel: Mr P Tomasetti SC (Applicant) Mr T Messenger, solicitor (Respondent)

Solicitors: DC Balog & Associates (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/00165449 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against an Order concerning the unauthorised use of a building as a secondary dwelling at 40 Claude Street Chatswood. 2. 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". 3. 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. 4. 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. 5. 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 Council's Order to the applicant dated 21 January 2016 under section 121B of under the Environmental Planning and Assessment Act 1979 (annexed hereto and marked "A") (Order No.2835) be amended to omit paragraphs 2, 3 and 4, which appear under the heading "SCHEDULE OF WORKS". ……………. G T Brown Commissioner 165449.16 - Annexure A - Order No. 2835 (1.11 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: 22 July 2016