Harris v Hornsby Shire Council [2016] NSWLEC 1401

Land and Environment Court New South Wales

Medium Neutral Citation: Harris v Hornsby Shire Council [2016] NSWLEC 1401 Hearing dates: Conciliation conference on 10 August 2016 Date of orders: 08 September 2016 Decision date: 08 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION; subdivision; tree retention; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Martin John Harris (Applicant) Hornsby Shire Council (Respondent) Representation: Applicant: Mr G McKee (Solicitor) Respondent: Mr D Loether (Solicitor)

Solicitors: McKees Legal Solutions (Applicant) Bartier Perry (Respondent) File Number(s): 150139 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 Applicant is granted leave to rely upon the Clause 4.6 variation Exception to Development Standards (Minimum allotment size) prepared by Minto Planning Services dated 18 August 2016. 2. The appeal is upheld. 3. Development Application No. DA 1165/2015 which was lodged with the Respondent on 14 September 2015 for the subdivision of one allotment into two lots and retention of the existing dwelling at 62 Dartford Road, Thornleigh is approved subject to the conditions contained in Annexure "A". ___________________________ Judy Fakes Commissioner of the Court 150139.16 Fakes (C) (262 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: 08 September 2016