John Drivas v City of Canada Bay Council [2017] NSWLEC 1724

Land and Environment Court New South Wales

Medium Neutral Citation: John Drivas v City of Canada Bay Council [2017] NSWLEC 1724 Hearing dates: Conciliation conference on 15 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Class 1 Before: Smithson C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: 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: John Drivas (Applicant) City of Canada Bay Council (Respondent) Representation: Solicitors: Mr D Tyrell, McKees Legal Solutions (Applicant) Mr T Bush, Pikes & Verekers Lawyers (Respondent) File Number(s): 2017/139965 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 granted leave to amend their development application in accordance with the plans referred to in Condition DAGCA01 of Annexure "A". 2. The applicant is to pay the respondents costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The Appeal is upheld. 4. Development Application No. 2016/0438 for the demolition of all existing structures and construction of a 4 storey mixed use development comprising a ground floor retail/commercial space with associated car parking and 11 residential apartments is approved subject to the conditions set out in Annexure "A" to this agreement. ………………………. J Smithson Commissioner of the Court Annexure A (C) (402 KB, pdf) Plans (10.3 MB, pdf)