Land and Environment Court New South Wales Medium Neutral Citation: Lianos v Zahr [2017] NSWLEC 1085 Hearing dates: 6 December 2016,30 January, 6 and 8 and 20 February 2017 Date of orders: 23 February 2017 Decision date: 23 February 2017 Jurisdiction: Class 3 Before: Martin SC Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Katina Lianos (Applicant) Ali Zahr (Respondent) Noha Zahr (Respondent) Representation: Gary Koutzoumis, Koutzoumis Lawyers (Applicant) Ali Zahr, Self-Represented Litigant (Respondent) Noha Zahr, Self-Represented Litigant (Respondent) File Number(s): 2016/00268013 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 Respondents will do all necessary matters and things to remove that part of the colorbond fence at the front of the properties (that is the two panels measuring approximately 5 metres) and dividing the properties subject of these proceedings at their sole expense. 2. The parties agree to share equally in the cost of and incidental to the construction of a single skin brick fence/retaining wall between their properties to replace that part of the color bond fencing referred to in (1) above in accordance with the Quotation issued by Mr Nick Gouskos in the amount of $ 2,200.00. 3. The parties agree to pay the amount of $ 1,100.00 each into the Law Practice Trust Account of the Applicant's Solicitors, within 14 days of the date of this Agreement. 4. The parties hereby agree, authorise and instruct Gary Koutzoumis, Solicitor to withdraw the amount of $2,200.00 on completion of the works by Mr Gouskos and not before. 5. It is agreed that the brick fence/retaining wall is to be constructed and positioned in accordance with the Survey Report prepared by G & R Surveying Services P/L dated 12 November 2014 (attached) as agreed between the parties at the Section 34 Conciliation Conference on 30 January 2017. 6. It is agreed that the Respondents are at liberty to erect colorbond fencing either on top of the newly constructed single brick retaining wall fence to the height of the fencing dividing the properties or alternatively adjacent to the brick fence/retaining wall (within the Respondents' property) and subject to local council approval (if required). This is agreed to be done by the Respondents at their sole expense and without any financial or other contribution from the Applicant. 7. Each party is to bear its own costs of these proceedings. ……………. Rosemary Martin Senior Commissioner 268013.16 Survey Report (1.34 MB, pdf) Amendments 23 February 2017 - Ordered 2 amended. 24 February 2017 - 'Before' changed to Martin SC 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: 24 February 2017