Land and Environment Court New South Wales Medium Neutral Citation: Bellevue Projects Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1378 Hearing dates: Conciliation conference on 2, 3, 4 August 2016 Date of orders: 12 August 2016 Decision date: 12 August 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See (4) below Catchwords: SUBDIVISION APPEAL: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Bellevue Projects Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Michael Staunton (Applicant) Verity Mc William (Respondent) Solicitors: Storey & Gough (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2016/00154684 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 amend the development application to rely upon the following plans: Title/Name Drawing No. Revision/Issue Date Prepared by Subdivision Plan DA A 28/08/2015 Frank Bortolotti 15/07/05 Proposed Driveway + DA G 05/08/2016 Frank Bortolotti Sub-division Site Plan 15/06/01 L&EC Entry + Site Plan DA 15/06/02 B 05/08/2016 Frank Bortolotti Driveway Profile Acor Consultants Existing Bitumen SK10 F 05/08/2016 (CC) Pty Limited Surface Proposed Driveway SK11 F 05/08/2016 Acor Consultants Plan (CC) Pty Limited Stormwater Management Plan SK12 F 05/08/2016 Acor Consultants (CC) Pty Limited Interallotment Drainage Plan & SK-LS1 B 05/08/2016 Acor Consultants Interallotment Drainage Longitudinal Section (CC) Pty Limited Driveway Cross Sections LE1 B 04/08/2016 Acor Consultants (CC) Pty Limited Driveway Longitudinal LE2 B 04/08/2016 Acor Consultants Section Alignment LS1 (CC) Pty Limited Driveway Cross Sections – Sheet 2 LE3 B 04/08/2016 Acor Consultants (CC) Pty Limited Landscape Plans Geoffrey Britten 3 sheets hand drawn 1. The Applicant is to pay those costs of the Respondent thrown away pursuant to section 97B of the Environmental Planning & Assessment Act 1979, as a result of amending the development application in accordance with Order (1) in a sum as agreed or assessed. 2. The Appeal is upheld. 3. Development Application No. N0384/15 for a one into two lot subdivision, construction of driveway, tree removal, landscape works, servicing of the proposed lot including stormwater works and construction of fencing and gates at 35 Water Street, Wahroonga is approved subject to the conditions in Annexure "A". The Court notes the undertaking of the Applicant to the Court that the Applicant will retain Mr Guy Paroissien to supervise any driveway construction works which are approved to be carried out within the tree protection zones of the tree numbered T31/Cedrus deodar (Himalayan Cedar) on the approved plans and in accordance with the approved Tree -Sensitive Construction Sequence Plan. ……………. Susan Dixon Commissioner 154684.16 - Annexure A (191 KB, 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: 02 September 2016