Gelder Architects v Ku-ring-gai Council [2016] NSWLEC 1571

Land and Environment Court New South Wales

Medium Neutral Citation: Gelder Architects v Ku-ring-gai Council [2016] NSWLEC 1571 Hearing dates: Conciliation conference on 25 August 2016 Date of orders: 30 November 2016 Decision date: 30 November 2016 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPEAL under s97(1)(b) against deemed 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: Gelder Architects (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: Mr. Sattler, A, Sattler and Associates (Applicant) Ms Lesley Finn, Hones Lawyers (Respondent) File Number(s): 2016/00157999 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) (b) of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council of DA 0599/2015. The Development Application sought approval for demolition of existing structures and construction of a seniors living development at 404 Mona Vale Rd, St Ives. 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 are: 1. The appeal is upheld 2. The Applicant is granted leave to rely upon the amended architectural and landscape plans set out in operational Condition 1 in Annexure A; 3. 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 4. Development Consent is granted to Development Application number DA 0599/2015, for demolition of existing structures and construction of a seniors living development consisting of 15 units, basement parking, landscaping and strata subdivision at 404 Mona Vale Rd, St Ives, subject to the conditions annexed hereto and marked in Annexure A ……………. D M Dickson Commissioner of the Court 157999.16 Dickson (C) (455 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: 01 December 2016