Land and Environment Court New South Wales Medium Neutral Citation: MNT Investments Pty Limited v Northern Beaches Council [2017] NSWLEC 1596 Hearing dates: Conciliation conference on 10 and 31 May, 15 June and 18 October 2017 Date of orders: 24 October 2017 Decision date: 24 October 2017 Jurisdiction: Class 1 Before: Martin SC 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: MNT Investments Pty Limited (Applicant) Northern Beaches Council (Respondent) Representation: Mr A Sattler, Sattler & Associates Pty Ltd (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/26834 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. The Applicant is given leave to amend the development application by substituting the following plans and documents as the plans and documents relied upon for the purposes of the development application: Plan No. / Title Issue/ Prepared by Plan No. / Title Revision & Date DA03 Ground Floor Plan Amd. E 7 August 2017 Simon Rosewell Pty Ltd DA03 Ground Floor Plan DA04 Elevations 01 Amd. D 7 August 2017 Simon Rosewell Pty Ltd DA04 Elevations 01 DA05 Elevations 02 Amd. F 7 August 2017 Simon Rosewell Pty Ltd DA05 Elevations 02 DA06 Section Amd. G 15 June 2017 Simon Rosewell Pty Ltd DA06 Section DA09 Site Plan Amd. E 7 August 2017 Simon Rosewell Pty Ltd DA09 Site Plan DA 11 First Floor & Mezzanine Plans Amd. E 7 August 2017 Simon Rosewell Pty Ltd DA 11 First Floor & Mezzanine Plans SK01 Section Track System Undated Simon Rosewell Pty Ltd SK01 Section Track System DA03 Ground Floor Plan Amd. E 7 August 2017 Simon Rosewell Pty Ltd DA03 Ground Floor Plan DA04 Elevations 01 Amd. D 7 August 2017 Simon Rosewell Pty Ltd DA04 Elevations 01 Document Date Author Received Statement of Environmental Effects 29 March 2016 Colco Consulting Pty Ltd 30 March 2016 Plan of Management for the Operations of Donny's Café, Bar & Restaurant October 2017 MNT Investments Pty Ltd October 2017 (with a cover note "DONNY's August 2017) Heritage Impact Statement Simon Rosewell 30 March 2016 Social Impact Assessment 2016 MNT Investments Pty Ltd 30 March 2016 Acoustic Impact Assessment 25 September 2017 PKA Acoustic Consulting September 2017 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA DA77/2016 for change of use and alterations and additions to an existing commercial building for the use of the site as a restaurant/café, consolidation of shops, addition of a new first floor, new mezzanine level, rooftop terrace, outdoor eating areas, and extension to the hours of operation, at 29 Sydney Road, Manly subject to the conditions annexed to this Agreement at "A" and the amended plans annexed to this Agreement at "B". 3. The applicant is to pay the respondent's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. ………………………. Senior Commissioner Martin Annexure A (C) (294 KB, pdf) Annexure B (Plans) (443 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 October 2017