Harwood v Sutherland Shire Council [2018] NSWLEC 1081

Land and Environment Court New South Wales

Medium Neutral Citation: Harwood v Sutherland Shire Council [2018] NSWLEC 1081 Hearing dates: Conciliation conference on 19 December 2017 and 18 January 2018 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Class 1 Before: Dixon 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: Robert Harwood (Applicant) Sutherland Shire Council (Respondent) Representation: Solicitor Caitlin McJannett, Mills Oakley (Applicant) Jannelle Amy (Respondent) File Number(s): 2017/240061 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 as referred to in condition 1 of the conditions of consent contained in Annexure "A" and included at Annexure "B". 2. The applicant is to pay the respondent's costs 'thrown away' as agreed or assessed as a result of the amendments referred to above for the purposes of section 97B of the Environmental Planning and Assessment Act 1979. 3. The written request to vary the height standard set out in "Clause 4.6 to Clause 4.3 of Sutherland LEP 2015 Exceptions to Development Standards – Height Variation" prepared by ABC Planning Pty Ltd dated January 2018 pursuant to clause 4.6 of Sutherland Shire LEP 2015 is upheld. 4. The written request to vary the floor space ratio standard set out in "Clause 4.6 to Clause 4.4 of Sutherland LEP 2015 Exceptions to Development Standards – FSR Variation" prepared by ABC Planning Pty Ltd dated January 2018 pursuant to clause 4.6 of Sutherland Shire LEP 2015 is upheld. 5. The appeal is upheld. 6. Development application no. DA17/0158 for the demolition of existing buildings on the site and construction of a mixed use building at 283-283A Kingsway, Caringbah, is approved subject to the conditions in Annexure "A". ………………………. Susan Dixon Senior Commissioner of the Land and Environment Court Annexure A (404 KB, pdf) Annexure B (1.71 MB, pdf)