Kelson v Newcastle City Council [2016] NSWLEC 1434

Land and Environment Court New South Wales

Medium Neutral Citation: Kelson v Newcastle City Council [2016] NSWLEC 1434 Hearing dates: Conciliation conference on 16 August 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Class 1 Before: Dickson C Decision: See [6] Catchwords: DEVELOPMENT APPEAL: Appeal under s97(1) against refusal - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Kim Kelson (Applicant) Newcastle City Council (Respondent) Representation: Solicitors: G. Long, Long Legal Pty Ltd, (Applicant) J. Marshall, Newcastle City Council, (Respondent) File Number(s): 2016/00162924 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal by Newcastle City Council of DA 2014/0987. The development application sought approval for alterations and additions to the existing dwelling and erection of a studio at 112 Bruce Street Cooks Hill. 2. The appeal was subject to mandatory conciliation on 16 August 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). During the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. 3. 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". 4. 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. 5. 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. 6. The final orders to give effect to the parties' agreement are: 1. The Applicant is granted leave to rely upon the plans set out in Condition 1 in Annexure A; 2. The appeal is upheld; 3. Development Consent is granted to Development Application number DA 2014/0987, for alterations and additions to the existing dwelling and erection of a detached studio at 112 Bruce Street Cooks Hill, subject to the conditions in Annexure A. ……………. D M Dickson Commissioner 162924.16 - Annexure A (39.8 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: 22 September 2016