Land and Environment Court New South Wales Medium Neutral Citation: Miskoski v Sutherland Shire Council [2017] NSWLEC 1252 Hearing dates: Conciliation conference 23 May 2017 Date of orders: 24 May 2017 Decision date: 24 May 2017 Jurisdiction: Class 1 Before: Gray C Decision: See (4) below Catchwords: MODIFICATION APPLICATION: dual occupancy; addition of roof top service area; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Slobodan Miskoski (First Applicant) Natalie Trajceski (Second Applicant) Sutherland Shire Council (Respondent) Representation: Solicitors: Bartier Perry (Applicants) Janelle Maree Amy, Sutherland Shire Council (Respondent) File Number(s): 2017/34117 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 amend Modification Application No. MA16/0425 and to rely upon the following amended plans, a copy of which is attached as Annexure "A": Drawing No. Drawing Name Prepared by Date SH01, Rev F Site Plan JIH Building Designs 22 May 2017 SH02, Rev F Lower Ground JIH Building Designs 22 May 2017 SH03, Rev F Ground Floor Plan JIH Building Designs 22 May 2017 SH04, Rev F First Floor JIH Building Designs 22 May 2017 SH05, Rev F Roof Plan JIH Building Designs 22 May 2017 SH06, Rev F West Elevation JIH Building Designs 22 May 2017 SH07, Rev F North Elevation JIH Building Designs 22 May 2017 SH08, Rev F South Elevation JIH Building Designs 22 May 2017 SH09, Rev F East Elevation JIH Building Designs 22 May 2017 SH10, Rev F Section AA JIH Building Designs 22 May 2017 SH11, Rev F Section BB JIH Building Designs 22 May 2017 SH12, Rev F Section CC JIH Building Designs 22 May 2017 SH13, Rev F Section DD JIH Building Designs 22 May 2017 SH14, Rev F Schedules JIH Building Designs 22 May 2017 SH15, Rev F Construction Management JIH Building Designs 22 May 2017 SH16, Rev F Perspective JIH Building Designs 22 May 2017 SH17, Rev F Perspective JIH Building Designs 22 May 2017 SH18, Rev F Strata Plan JIH Building Designs 22 May 2017 SH19, Rev F Shadow Diagram JIH Building Designs 22 May 2017 SH20, Rev F FSR Calculation JIH Building Designs 22 May 2017 SH21, Rev F Concept Landscape Plan JIH Building Designs 10 April 2017 SH22, Rev F First Floor Footprint Calculations JIH Building Designs 22 May 2017 SH23, Rev F Service Rood Perspective JIH Building Designs 22 May 2017 1. Modification Application No. MA16/0425 (as amended) on Lot 41 in Community Plan DP270647, otherwise known as 4 Kershaw Road, Menai, be approved subject to condition 2 contained in Annexure "B". 2. As a consequence of order (3), Development Consent No. DA14/0717 is subject to the consolidated, modified conditions of consent as set out in Annexure "B". ……………. Joanne Gray Commissioner of the Court 34117.17 Annexure A (2.80 MB, pdf) 34117.17 Annexure B (53.3 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: 24 May 2017