Dinusha Wijewickrama v Port Stephens Council [2017] NSWLEC 1108

Land and Environment Court New South Wales

Medium Neutral Citation: Dinusha Wijewickrama v Port Stephens Council [2017] NSWLEC 1108 Hearing dates: Conciliation on 3 March Date of orders: 06 March 2017 Decision date: 06 March 2017 Jurisdiction: Class 1 Before: Chilcott C 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: Dinusha Wijewickram (Applicant) Port Stephens Council (Respondent) Representation: Brian Walters, Kingston Swift (Applicant) Anthony Pickup, Local Government Legal (Respondent) File Number(s): 2016/335991 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 Applicant is granted leave to amend the development application to include the following works to the retaining wall on the eastern boundary of the land: 1. The removal of the top row of blocks; and 2. the battering down of the soil; and 3. the installation of a stormwater system (including the installation of geotech fabric to prevent sediment from being deposited onto the adjacent property) to deal with drainage adjacent to the wall 1. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs agreed at $3,000.00 within 21 days. 2. The appeal is upheld. 3. Development application No.16-2016-246-1 for remedial works and use of an existing retaining walls at 73 Gould Drive, Lemon Tree Passage is approved subject to the conditions in Annexure "A". ……………. Michael Chilcott Commissioner 335991.16 Annexure A (C) (7.87 KB, 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: 06 March 2017