Bower Restaurant Pty Limited v Northern Beaches Council [2017] NSWLEC 1011

Land and Environment Court New South Wales

Medium Neutral Citation: Bower Restaurant Pty Limited v Northern Beaches Council [2017] NSWLEC 1011 Hearing dates: Conciliation conference on 5 & 22 December 2016 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Class 1 Before: Smithson C Decision: See (4) below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Bower Restaurant Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Barrister: Mr M Staunton, Martin Place Chambers (Applicant) Solicitor: Ms J Walsh, Pikes & Verekers Lawyers (Respondent) File Number(s): 2016/250248 Publication restriction: No

Judgment 1. COMMISSIONER: 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". 2. 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 4. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Appeal is upheld. 2. Section 96(1A) application no. 3754/1990/2 for the modification of development consent no. 3754/90 for proposed extension of trading hours dated 23 October 1990 as modified by notice of determination dated 19 November 1990 at 7/7-9 Marine Parade, Manly is determined by approving the modification as set out in Annexure A. 3. As a consequence of order (2), Development Consent No. 3754/90 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ……………. Commissioner Smithson 250248.16 Smithson - Annexure A (933 KB, pdf) 250248.16 Smithson - Annexure B (966 KB, pdf)