Able Apartments Pty Limited v Ku-ring-gai Council [2016] NSWLEC 1519

Land and Environment Court New South Wales

Medium Neutral Citation: Able Apartments Pty Limited v Ku-ring-gai Council [2016] NSWLEC 1519 Hearing dates: Conciliation conference on 13 July, 30 August, 27 September, 24 October 2016 Date of orders: 04 November 2016 Decision date: 04 November 2016 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing buildings and construction of a mixed use development: 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: Able Apartments Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Mr M Staunton, barrister (Applicant) Mr A Hudson, solicitor (Respondent)

Solicitors: - (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2016/00153791 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA0039/16 for the demolition of existing buildings and construction of a mixed use development at 1017 Pacific Highway Pymble. 2. 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". 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 under s34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to rely on the amended plans referred to in Condition 1 of Annexure 'A'. 2. The applicant is to pay the respondent's costs thrown away for the purpose of section 97B of the Environmental Planning and Assessment Act 1979 agreed at $6,000. 3. The appeal is upheld. 4. Development Application No. DA0039/16 for the demolition of existing buildings and construction of a mixed use (2 x commercial tenancies and 14 x shop top housing units including basement parking and strata subdivision) for Lot 2 DP 5216966, 1017 Pacific Highway, Pymble NSW 2073 subject to the conditions in Annexure 'A'. ……………. G T Brown Commissioner 153791.16 - Annexure A (193 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 November 2016