Nanevski Developments Pty Ltd v Bayside Council [2018] NSWLEC 1038

Land and Environment Court New South Wales

Medium Neutral Citation: Nanevski Developments Pty Ltd v Bayside Council [2018] NSWLEC 1038 Hearing dates: Conciliation conference on 25 January 2018 Date of orders: 02 February 2018 Decision date: 02 February 2018 Jurisdiction: Class 1 Before: Maston AC 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: Nanevski Developments Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Solicitor: Mr H Kahagalle, Addisons Lawyers (Applicant) Mr J Cole, HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/139253 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. Within 3 months of the date of these Orders the Applicant is to: 1. carry out the demolition works as indicated in red on the demolition plans which are annexed to these orders and marked "A", with such works to be carried out in accordance with the conditions annexed hereto and marked "B"; 2. provide Council with a report from a qualified structural engineer certifying the structural adequacy of the unauthorised works indicated in red on the plans annexed to these orders and marked "C", and also certifying the structural adequacy of any works authorised by the development consent granted by the Land and Environment Court in Proceedings No. 10629 of 2010 that have or may be impacted by the demolition works referred to in Order (a)(i) above; 3. notify the Council when it believes it has complied with Order (a)(i) and (ii) above. 1. Within 14 days of the notification referred to in Order (a)(iii) above, the Council is to notify the Applicant in writing as to whether it is satisfied that the Applicant has complied with Order (a)(i) and (ii) above, and if not satisfied, must give reasons for its dissatisfaction. 2. Upon the Council providing notice to the Applicant in writing as to its satisfaction that the Applicant has complied with Order (a)(i) and (ii) above, the Council is thereby directed, within 14 days, to issue a building certificate to the Applicant in relation to the unauthorised works indicated in red on the plans annexed to these orders and marked "C". 3. The parties are granted liberty to restore the matter to the list to resolve any dispute as to whether any party has complied with orders (a), (b) and (c) above. ………………………. Acting Commissioner Maston Annexure A (4.73 MB, pdf) Annexure B (169 KB, pdf) Annexure C (4.85 MB, 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: 02 February 2018