Kipper v Randwick City Council [2017] NSWLEC 1302

Land and Environment Court New South Wales

Medium Neutral Citation: Kipper v Randwick City Council [2017] NSWLEC 1302 Hearing dates: Conciliation Conference on 4 May 2017, 8 June 2017 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: ORDER: compliance with condition of consent for an external metal screen; 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: Mr P. O'Brien, O'Brien Legal (Applicant) Ms A. Bowen, Eakin McCaffery Cox Lawyers Respondent) Representation: Kristina Kipper (Applicant) Randwick City Council (Respondent) File Number(s): 2016/385809 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against an Order under s121B of the Environmental Planning and Assessment Act 1979 given by the council for compliance with a condition of consent for an external metal screen at 11 Monmouth Street, Randwick, NSW. 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. Appeal upheld. 2. The order of Randwick City Council pursuant to s121B, item number 15, of the Environmental Planning and Assessment Act 1979 dated 1 December 2016, issued to Kristina Kipper in respect of premises at 11 Monmouth Street, Randwick, NSW, 2031, is revoked. 3. Development Consent DA/406/2012/A is amended as set out in Schedule A. ……………. G Brown Commissioner of the Court 385809.16 Brown - Schedule A (5.50 KB, pdf) 385809.16 Brown - Schedule B (385 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: 14 June 2017