Silva & anor v Ku-ring-gai Council [2016] NSWLEC 1389

Land and Environment Court New South Wales

Medium Neutral Citation: Silva & anor v Ku-ring-gai Council [2016] NSWLEC 1389 Hearing dates: Conciliation conference on 6 September 2016 Date of orders: 06 September 2016 Decision date: 06 September 2016 Jurisdiction: Class 1 Before: Fakes 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: Nelson Silva & Helen Shialis (Applicants) Ku-ring-gai Council (Respondent) Representation: Counsel: Applicants: Ms S Duggan SC Respondent: Dr J Smith

Solicitors: Hicksons (Applicants) Hones Lawyers (Respondent) File Number(s): 153157 of 2016 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. 2. The s 121B order dated 6 October 2015 is amended to read as set out in Annexure 'A'. 3. Liberty is granted to both parties to restore the matter to the list in the event that there is a need to amend the orders set out in Annexure 'A'. _______________________ Judy Fakes Commissioner of the Court 153157.16 Annexure A - amended order (282 KB, pdf) 153157.16 plan (324 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: 07 September 2016