Tomasy Pty Ltd v Northern Beaches Council [2016] NSWLEC 1415

Land and Environment Court New South Wales

Medium Neutral Citation: Tomasy Pty Ltd v Northern Beaches Council [2016] NSWLEC 1415 Hearing dates: Conciliation conference on 17 August 2016 Date of orders: 16 September 2016 Decision date: 16 September 2016 Jurisdiction: Class 1 Before: Fakes C Decision: See (4) below Catchwords: BUILDING CERTIFICATE APPLICATION; Colorbond Fence; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Tomasy Pty Ltd (Applicant) Northern Beaches Council (formerly Warringah Shire Council) (Respondent) Representation: Applicant: Ms R Mozejko (Solicitor) Respondent: Mr S Patterson (Solicitor) Solicitors: McCabes Lawyers (Applicant) Wiltshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 154201 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 Court directs Northern Beaches Council to issue a building certificate relating to Building Certificate Application No. BC2016/0010 submitted to Northern Beaches Council (formerly Warringah Council) on 22 February 2016 by Tomasy Pty Ltd with respect to Colorbond fencing at the rear and southern boundaries of Lot 1, DP 528546 (No. 1121) Pittwater Road, Collaroy ("the site") subject to the Colorbond fencing being altered in accordance with Drawing No. 1.01 attached at Annexure A to this agreement and the submission of an identification survey to Council confirming that the fencing has been relocated to be wholly within the site. Note: The Court notes the intention of the parties to bear their own costs. ________________________ Judy Fakes Commissioner of the Court 154201.16 Annexure A - plan (84.3 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: 19 September 2016