18 Nerigai Place Pty Ltd v Newcastle City Council [2017] NSWLEC 1196

Land and Environment Court New South Wales

Medium Neutral Citation: 18 Nerigai Place Pty Ltd v Newcastle City Council [2017] NSWLEC 1196 Hearing dates: Conciliation conference on 21 April 2017 Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPEAL under s97(1) against refusal of application for 25 two storey dwellings and associated infrastructure: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: 18 Nerigai Place Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Solicitors: A McKelvey, Sparke Helmore Solicitors (Applicant) J Marshall, Newcastle City Council (Respondent) File Number(s): 2016/00385945 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of Development Application No.2015/0540 which sought consent for twenty five two storey dwellings, strata subdivision, tree removal and associated site works at 18 Nerigai Close, Elermore Vale. 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, 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 are: 1. The Applicant is granted leave to amend the development application rely upon the plans set out in Condition 1 in Annexure A; 2. The appeal is upheld; and 3. DA/2015/0540 for two storey residential dwellings, strata subdivision, tree removal and associated site works at 18 Nerigai Close, Elermore Vale, is approved subject to conditions of consent set out in Annexure A. ……………. D M Dickson Commissioner of the Court 385945.16 Annexure A (C) (274 KB, pdf) 385945.16 Plans Part 1 (14.7 MB, pdf) 385945.16 Plans Part 2 (14.8 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: 21 April 2017