Xie v City of Canada Bay Council [2017] NSWLEC 1213

Land and Environment Court New South Wales

Medium Neutral Citation: Xie v City of Canada Bay Council [2017] NSWLEC 1213 Hearing dates: 13 February, 3 April 2017 Date of orders: 28 April 2017 Decision date: 28 April 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a boarding house; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Zhong Jie Xie (Applicant) City of Canada Bay Council (Respondent) Representation: Ms A Spizzo, Landerer & Company (Applicant) Mr P Jackson, Pikes and Verekers Lawyers (Respondent) File Number(s): 2016/333185 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of development application DA2016/0270 for the demolition of existing dwelling and construction of a boarding house at 76 Consett Street, Concord West. 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. The applicant is granted leave to rely on the amended plans and documentation referred to in condition DAGCA01 of Annexure A. 2. The applicant is to pay the respondents costs thrown away pursuant to s 97B of the Environmental Planning and Assessment Act 1979 in the sum of $3000.00 within 28 days. 3. Appeal Upheld. 4. DA2016/0270 is approved. ……………. Graham Brown Commissioner of the Court 333185.16 Annexure A (C) (444 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: 28 April 2017