Level 88 Developments Pty Ltd v Northern Beaches Council [2017] NSWLEC 1016

Land and Environment Court New South Wales

Medium Neutral Citation: Level 88 Developments Pty Ltd v Northern Beaches Council [2017] NSWLEC 1016 Hearing dates: Conciliation conference on 5 December 2016 Date of orders: 18 January 2017 Decision date: 18 January 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPEAL under s97(1) against refusal of application for multi unit housing: 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: Level 88 Developments Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Solicitors: Hones Lawyers, (Applicant) King & Wood Mallesons, (Respondent) File Number(s): 2016/252260 Publication restriction: NoClick here to enter text.

Judgment 1. COMMISSIONER: This is an appeal, under s97 (1) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of Development Application No. NO248/16 for the demolition of existing structures and construction of a multi-unit housing development comprising of 9 dwellings and associated car parking and landscaping at 5 - 7 Macpherson St, Warriewood. 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 Applicant is granted leave to amend the development application and rely upon the amended plans referred to in annexure "A"; 2. The Applicant is to pay the Respondent's costs thrown away as a result of amending the development application pursuant to section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The Appeal is upheld; and 4. Development Application No. NO248/16 for the demolition of existing structures and construction of a multi-unit housing development comprising of 9 dwellings and associated car parking and landscaping at 5-7 Macpherson St, Warriewood is determined by approving the application subject to conditions of consent set out in Annexure "A". ……………. D M Dickson Commissioner 252260.16 Dickson (C) (99.8 KB, pdf) 252260.16 - Plans Part 1 (15.4 MB, pdf) 252260.16 - Plans Part 2 (4.85 MB, 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: 19 January 2017