18 Falcon Street Pty Ltd v Shellharbour City Council [2017] NSWLEC 1281

Land and Environment Court New South Wales

Medium Neutral Citation: 18 Falcon Street Pty Ltd v Shellharbour City Council [2017] NSWLEC 1281 Hearing dates: Conciliation conference on 5 & 17 May 2017 Date of orders: 05 June 2017 Decision date: 05 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: construction of a multi-unit housing development; 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: 18 Falcon Street Pty Ltd (Applicant) Shellharbour City Council (Respondent) Representation: Ms C McJannett. Mills Oakley (Applicant) Mr M Bonanno, Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/384209 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of development application no. DA0252/2016 for the construction of a multi dwelling housing development consisting of ten (10) dwellings at 18A and 18B Falcon Street and 4 Wren Lane, Shellharbour City Centre 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 documents as referred to in the conditions of consent contained in Annexure "A". 2. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent's costs thrown away as a result of the amendments, as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to development application no. DA0252/2016 lodged on 15 July 2016 for the construction of a multi dwelling housing development consisting of ten (10) dwellings at 18A and 18B Falcon Street and 4 Wren Lane, Shellharbour City Centre NSW 2529. ………………………. G Brown Commissioner 384209.16 Brown (C) (427 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: 03 May 2018