Land and Environment Court New South Wales Medium Neutral Citation: Murtag Developments Pty Limited v Ku-ring- gai Council [2016] NSWLEC 1508 Hearing dates: Conciliation conference on15 August 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below. Catchwords: DEVELOPMENT APPEAL under s97(1)(b) against deemed refusal of development consent : 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: Murtag Developments Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: S Kondilios, Hall and Wilcox Lawyers (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/00159164 Publication restriction: No JudgEment 1. COMMISSIONER: This is an appeal, under s97 (1)(b) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of DA 0593/2015 for the construction of a residential flat building (15 units) and three levels of basement parking at 1070 -1072 Pacific Highway, Pymble (the Site). 2. In this matter, at or after a conciliation conference, an agreement under s34(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". 3. 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. 4. 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. 5. The final orders to give effect to the parties' agreement are: 1. The Class 1 appeal is upheld 2. The Applicant is granted leave to rely upon the plans set out in operational Condition 1 in Annexure A; 3. Development Application number DA 0593/2015, seeking consent for the construction of a residential flat building comprising 15 residential dwellings, three levels of basement parking and landscaping at 1070- 1072 Pacific Highway Pymble (Lot A DP 408870) and part Portion B DP 433509 is approved subject to the conditions in Annexure A. 4. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed. ……………. D M Dickson Commissioner of the Court 159164.16 - Annexure A (194 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: 02 November 2016