DEP Warriewood no. 2 Pty Ltd v Northern Beaches Council [2017] NSWLEC 1193

Land and Environment Court New South Wales

Medium Neutral Citation: DEP Warriewood no. 2 Pty Ltd v Northern Beaches Council [2017] NSWLEC 1193 Hearing dates: Conciliation on 27 March, 4 and 6 and 11 April 2017 Date of orders: 13 April 2017 Decision date: 13 April 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: DEP Warriewood No 2 Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: M Sonter, Mills Oakley (Applicant) A Bond, King and Wood Mallesons (Respondent) File Number(s): 2017/22807 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 appeal is upheld. 2. The Applicant is granted leave to rely on the amended plans listed in condition A1 of Annexure "A" to this agreement. 3. Development Application N0460/16, as amended pursuant to paragraph 2 above, for the construction of a residential flat building on a yet to be created lot (Lot 21) approved pursuant to Development Application N0540/15, at 10 Fern Creek Road, Warriewood (Lot 6 in Deposited Plan 736961), is approved subject to the conditions set out in Annexure "A" to this agreement. 4. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant shall pay the Respondent's costs that are thrown away as a result of amending Development Application N0460/16 in the sum of $11,850.00 all inclusive, such costs to be paid within 14 days of these orders. ……………. Michael Chilcott Commissioner of the Court 22807.17 Annexure A (C) (99.7 KB, pdf) 22807.17 Plans (4.73 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: 13 April 2017