Land and Environment Court New South Wales Medium Neutral Citation: Elizabeth Horrobin v BK Investments (Australia) Pty Ltd [2017] NSWLEC 1645 Hearing dates: Conciliation conference on 8 November 2017 Date of orders: 13 November 2017 Decision date: 13 November 2017 Jurisdiction: Class 3 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: Elizabeth Horrobin (Applicant) BK Investments (Australia) Pty Ltd (Respondent) Representation: Counsel: Dr S Berveling (Applicant) Dr J Smith (Respondent) Solicitor: Mr D Williams, Whitehead Cooper Williams (Applicant) Mr G McKee, McKees Legal Solutions (Respondent) File Number(s): 2017/220659 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 Respondent will at its cost: 1. cut the coping as described below 2. install new pier or suitable alternative support structure at southwest corner of remaining coping 3. rebuild masonry retaining wall to provide (i) retaining of landscaping in accordance with approved construction certificate and (ii) support for western wall of pump house 4. relocate any outlet pipe and/or electrical services from the pump house back to pool. 1. The Respondent is to grant an easement for structures, support and services for that part of the pool coping extending onto the Respondent's land as illustrated on the attached Drawing dated 8 November 2017 and on the terms set out in Order No. 2 of the Class 3 Application. The Applicant is to pay for all legal costs or otherwise in the preparation and registration of the easement. 2. No compensation is payable for the grant of the easement. 3. The Respondent is to construct at its own cost a lapped and capped pool(s) compliant boundary fence from south boundary to the southern wall of the Respondent's study. The location of the centre of the fence is to be equal distance on the edge of the remaining copping. 4. The Applicant at its own cost is to remove the pump house and associated pipes and infrastructure from the Respondent's land by no later than 22 December 2017. However, both parties will endeavour to complete this work as soon as possible. 5. Each party pays its own costs. 6. The parties are to coordinate the timing of the works and provide reasonable access for the purposes of completing the works. ………………………. Senior Commissioner Martin 220659.17 Martin - Plans (49.8 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: 13 November 2017