DPG Project 9 Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1045

Land and Environment Court New South Wales

Medium Neutral Citation: DPG Project 9 Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1045 Hearing dates: Conciliation conference on 8 December 2017, 30 January 2018 Date of orders: 06 February 2018 Decision date: 06 February 2018 Jurisdiction: Class 1 Before: Adam 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: DPG Project 9 Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitor: Mr T Flaherty, Mills Oakley (Applicant) Mr C Drury, Sparke Helmore (Respondent) File Number(s): 2017/225212 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 rely on the amended plans and documents referred to in Condition 1 of "Annexure A" to this agreement. 2. The Clause 4.6 variation application in relation to the street frontage width development standard contained in Clause 6.5 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 is upheld. 3. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs that are thrown away as a result of the development application being amended in the sum of $7,500 within 21 days of the date of this Agreement. 4. The appeal is upheld. 5. Development Application No. DA0087/17 which was lodged with the Respondent on 15 March 2017 and seeks consent for demolition of existing structures and construction of a residential flat development including basement parking and landscaping works at 4 and 8 Cherry Street, Warrawee is approved subject to the conditions annexed to this agreement as "Annexure A." ………………………. Acting Commissioner Adam Annexure A (249 KB, pdf) Annexure B (5.39 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: 09 February 2018