Kiet Tran v Bayside Council [2017] NSWLEC 1392

Land and Environment Court New South Wales

Medium Neutral Citation: Kiet Tran v Bayside Council [2017] NSWLEC 1392 Hearing dates: Conciliation conference on 12 July 2017 Date of orders: 21 July 2017 Decision date: 21 July 2017 Jurisdiction: Class 1 Before: Smithson C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Kiet Tran (Applicant) Bayside Council (Respondent) Representation: Solicitors: Mr M Mantei, Mantei Planning Law Solutions (Applicant) Mr S Schneider, Houston Dearn O'Connor (Respondent) File Number(s): 2017/90413 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. Leave is granted to the applicant to rely on the amended plans set out in Condition 1 of Annexure A. 2. That the applicant pays those costs of the respondent authority that are thrown away as a result of amending the development application, as agreed or assessed. 3. That development consent be granted to development application reference DA16/044 for Torrens title subdivision into two lots, demolition of existing weatherboard and metal shed, and construction of a new two storey boarding house containing five (5) self contained rooms on proposed lot, at lot 10 section 3 DP 773, 5 McFadyen Street, Botany, subject to the conditions of consent in Annexure A. ………………………. Commissioner Smithson 90413.16 Smithson (C) (194 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 July 2017