Han & Anor v Cumberland Council [2017] NSWLEC 1544

Land and Environment Court New South Wales

Medium Neutral Citation: Han & Anor v Cumberland Council [2017] NSWLEC 1544 Hearing dates: Conciliation conference on 10 August 2017, 5,16 September 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing buildings and construction of 22 x 2 storey townhouses; 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: Weiguo Han (First Applicant) Miing Juan Wu (Second Applicant)

Cumberland Council (Respondent) Representation: Solicitors: Mr G Hartley, Hartley Solicitors (Applicant)

Mr C Gough, Storey and Gough Solicitors (Respondent) File Number(s): 2017/110979 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. DA-247/2015 for the demolition of the existing buildings, tree removal, construction of 22 x 2 storey townhouses over basement parking, strata subdivision, landscaping & associated stormwater works at 159-165 John Street, Lidcombe. 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 plans listed under Condition 1 below the heading 'Approved Plans' in Annexure 'A'. 2. Appeal upheld. 3. Development application number DA-247/2015 for demolition of the existing buildings, tree removal, construction of 22 x 2 storey townhouses over basement parking, strata subdivision, landscaping & associated stormwater works is approved subject to the conditions in Annexure 'A'. 4. The applicant is to pay $5,000.00 in full and final satisfaction of all costs thrown away as a result of amending plans under s97B of the Environmental Planning and Assessment Act 1979 (NSW). ____________ G Brown Commissioner of the Court Annexure A (C) (573 KB, pdf)