Munayer v Sutherland Shire Council [2017] NSWLEC 1077

Land and Environment Court New South Wales

Medium Neutral Citation: Munayer v Sutherland Shire Council [2017] NSWLEC 1077 Hearing dates: Conciliation conference on 25 January 2017 Date of orders: 21 February 2017 Decision date: 21 February 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: MODIFICATION; modification of existing approval for a dwelling house; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979Land and Environment Court Act 1979 Category: Principal judgment Parties: Catherine Munayer (Applicant) Sutherland Shire Council (Respondent) Representation: Mr A Hudson, Wilshire Webb Staunton Beattie (Applicant) Ms J Amy, Sutherland Shire Council (Respondent) File Number(s): 2016/312185 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal to modify DA06/1375 for the construction of a dwelling house at 64 Grays Point Road, Grays Point. 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 listed in Condition 1 of Annexure 'A'. 2. The appeal is upheld. 3. Modification application no. MA 164/0139 is approved to modify development consent no DA06/1375 (the development consent) as follows: 1. Delete the first part of condition 1 and replace with the following: "1. Approved Plans and Documents The development shall be implemented substantially in accordance with the details and specifications set out in the following table and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder. Plan number Reference Prepared by Date 1601/DA01/Issue E Site Plan Catherine Munayer Architecture 16/1/2017 1601/DA02/Issue D Roof Plan Catherine Munayer Architecture 16/1/2017 1601/DA03/Issue D Level 4 Floor Plan Catherine Munayer Architecture 16/1/2017 1601/DA04/Issue D Level 3 Floor Plan Catherine Munayer Architecture 16/1/2017 1601/DA05/Issue D Level 2 Floor Plan Catherine Munayer Architecture 16/1/2017 1601/DA06/Issue D Level 1 Floor Plan Catherine Munayer Architecture 16/1/2017 1601/DA07/Issue D Subfloor Plan Catherine Munayer Architecture 16/1/2017 1601/DA08/Issue D North Elevation Catherine Munayer Architecture 16/1/2017 1601/DA09/Issue D West Elevation Catherine Munayer Architecture 16/1/2017 1601/DA10/Issue D South Elevation Catherine Munayer Architecture 16/1/2017 1601/DA11/Issue D East Elevation Catherine Munayer Architecture 16/1/2017 1601/DA12/Issue D Section x-x Catherine Munayer Architecture 16/1/2017 181564S-02 BASIX CERTIFICATE Damian O'Toole Town Planning P/L 18/4/2016