Modog Pty Limited v Northern Beaches Council [2017] NSWLEC 1417

Land and Environment Court New South Wales

Medium Neutral Citation: Modog Pty Limited v Northern Beaches Council [2017] NSWLEC 1417 Hearing dates: Conciliation conference on 21 July 2017 Date of orders: 02 August 2017 Decision date: 02 August 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: MODIFICATION: application to modify approval for housing for seniors or people with a disability - 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: Modog Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Solicitor: Ms J Reid, barrister (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/56233 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Modification Application No. DA MOD2016/0327 that seeks to modify the approval of a housing for seniors or people with a disability at 36 Wyndora Avenue, Freshwater NSW 2096 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 amend the section 96 modification application by substituting the following amended plans and documents relied on for the purpose of the section 96 application: 1. Architectural plans prepared by Max Wessels, project no. 2313: 1. Drawing Number S96/2, amendment D dated 23 May 2017; 2. Drawing Number S96/4, amendment E dated 1 June 2017. 1. Stormwater plans prepared by Henry & Hymas: 1. Drawing number 14895_CC_C000 Rev 04 dated 17 July 2017 2. Drawing number 14895_CC_C100 Rev 08 dated 19 July 2017 3. Drawing number 14895_CC_C110 Rev 01 (Section) dated 18 July 2017 4. Drawing number 14895_CC_C101 Rev 10 dated 19 July 2017 5. Drawing number 14895_CC_C200 Rev 02 dated 29 May 2017 6. Drawing number 14895_CC_SE01 Rev 02 dated 29 May 2017 7. Drawing number 14895_CC_SE02 Rev 02 dated 29 May 2017 8. Drawing number 14895_CC_C102 Rev 04 dated 1 June 2017 9. Drawing number 14895_CC_C201 Rev 03 dated 18 July 2017 10. Drawing number 14895_CC_C202 Rev 02 dated 18 July 2017 11. Drawing number 14895_CC_C203 Rev 01 dated 1 June 2017 1. The appeal is upheld. 2. Modification application No. DA MOD2016/0327 for modification of a proposed housing for seniors or people with a disability at 36 Wyndora Avenue, Freshwater is approved subject to the consolidated set of conditions contained in Annexure "A". ………………………. Commissioner G Brown 56233.17 Brown (C) (403 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: 04 August 2017