Just Units Pty Limited v Northern Beaches Council [2016] NSWLEC 1464

Land and Environment Court New South Wales

Medium Neutral Citation: Just Units Pty Limited v Northern Beaches Council [2016] NSWLEC 1464 Hearing dates: Conciliation conference on 21 September 2016 Date of orders: 29 September 2016 Decision date: 29 September 2016 Jurisdiction: Class 1 Before: Dickson C Decision: See [6] below Catchwords: DEVELOPMENT APPEAL under s97(AA) against the refusal of consent to a modification application - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Just Units Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: M Staunton (Applicant)

Solicitors: T Sattler, Sattler & Associates Pty Ltd, (Applicant) A Gough, Storey & Gough, (Respondent) File Number(s): 2016/00240696 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a Section 96 amendment. The original application (DA/2015/0606) was for development of the site for industrial/warehouse building and caretakers dwelling including subdivision at 19 Narabang way Belrose. The amendment sought changes to the conditions of the consent, and the amendment application was given partial approval by the Council. 2. The appeal was subject to mandatory conciliation on 21 September 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 appeal is upheld; 2. Section 96(2) application number MOD2016/0013 lodged with the respondent on 21 January 2016 to modify Development Consent No DA2015/0606 for construction of an industrial/ warehouse building and caretakers dwelling, strata subdivision and occupation of units 1 to 26 as light industry and warehouse at 19 Narabang Way, Belrose is determined by approving the modification as set out in Annexure A. 3. As a consequence of order (2) Development consent DA/2015/0606 is now subject to the consolidated, modified conditions of development consent as set out in Annexure B. ……………. D M Dickson Commissioner 240696.16 - Annexure A (33.6 KB, pdf) 240696.16 - AnnexureB (114 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 October 2016