Ionic Management Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1710

Land and Environment Court New South Wales

Medium Neutral Citation: Ionic Management Pty Ltd v Sutherland Shire Council [2017] NSWLEC 1710 Hearing dates: Conciliation conference on 19 October, 1 and 15 November, 6 and 8 December 2017 Date of orders: 11 December 2017 Decision date: 11 December 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: Ionic Management Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Mr A Galasso, SC (Applicant) Mr M Stanton (Respondent)

Solicitors: HWL Ebsworth (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2017/190921 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 rely upon the amended plans referred to in condition 3 of Annexure A. 2. The applicant is to pay the Council's costs thrown away pursuant to section 97B of the Environmental Planning and Assessment Act 1979 in the amount of $1. 3. The appeal is upheld. 4. Approval is granted to DA16/1668 for demolition of existing structures and construction of mixed use commercial development including Woolworths supermarket, Dan Murphy's liquor store, commercial tenancies, child care centre, road widening/upgrade works, parking, signage and associated facilities at 24 – 38 Flora Street, Kirrawee subject to the conditions at Annexure A. ………………………. Commissioner Jenny Smithson Annexure A (C) Annexure B 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: 12 December 2017