Middle Cove Investments (No 1) Pty Ltd v Willoughby City Council [2017] NSWLEC 1051

Land and Environment Court New South Wales

Medium Neutral Citation: Middle Cove Investments (No 1) Pty Ltd v Willoughby City Council [2017] NSWLEC 1051 Hearing dates: Conciliation conference on 26 October 2016, 08, 10, 15 November 2016, 3 February 2017 Date of orders: 07 February 2017 Decision date: 07 February 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of a mixed used 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: Middle Cove Investments (No 1) Pty Ltd (Applicant) Willoughby City Council (Respondent) Representation: Solicitor: Mr G Hartley, Hartley Solicitors (Applicant) Mr J P Merlino, HWL Ebsworth Lawyers (Respondent) File Number(s): 2016/154425 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of DA2015/99 for the demolition of existing structures and construction of a mixed used development at 217 Eastern Valley Way, Middle Cove. 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 make, 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. Leave is granted to the Applicant to rely on the amended plans set out in Condition (1) at page 4 of Annexure A. 2. The applicant is to pay the respondents costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is upheld. 4. The applicant's request for an exception to the height development standard pursuant to clause 4.6 of the Willoughby Local Environmental Plan 2012 is upheld. 5. Development application DA/2015/99 for the demolition of existing commercial/retail structure and construction of a part 3, part 4 storey shop top housing development including 8 residential apartments above a ground floor commercial suite with basement car parking and associated landscaping in accordance with the conditions in Annexure A. ………………………. Commissioner Brown 154425.16 Brown (C) (432 KB, pdf) 154425.16 Brown - Plans (1.67 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: 08 February 2017