Matthew James Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1097

Land and Environment Court New South Wales

Medium Neutral Citation: Matthew James Pty Ltd v Sutherland Shire Council [2018] NSWLEC 1097 Hearing dates: Conciliation conference on 6 February 2018 Date of orders: 28 February 2018 Decision date: 28 February 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition and construction of three townhouses; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Matthew James Pty Ltd(Applicant) Sutherland Shire Council (Respondent) Representation: Solicitor: Vasili Conomos, Conomos Legal (Applicant) Janelle Amy, Sutherland Shire Council (Respondent) File Number(s): 2017/00253971 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal by Sutherland Shire Council of development application DA/17/0508. The application sought consent for demolition of the existing dwelling and construction of three townhouses. The works are proposed at 35 Morrison Avenue, Engadine. 2. 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". 3. 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. 4. 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. 5. 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 the development application and rely on the following plans in the proceedings Plan number Reference Prepared by Date DWG No. 01 Issue S34-4 Site Plan Scard Design Prepared 15 February 2018 DWG No. 02 Issue S34-4 Basement Floor Plan Scard Design Prepared 15 February 2018 DWG No. 03 Issue S34-4 Ground Floor Plan Scard Design Prepared 15 February 2018 DWG No. 04 Issue S34-4 First Floor Plan Scard Design Prepared 15 February 2018 DWG No. 05 Issue S34-4 Elevations 01 Scard Design Prepared 15 February 2018 DWG No. 06 Issue S34-4 Elevations 02 Scard Design Prepared 15 February 2018 DWG No. 07 Issue S34-4 Sections Scard Design Prepared 15 February 2018 DWG No. H01A Site Stormwater Drainage Plan and Details Clemensen Holdings Pty Ltd Prepared April 2017 DWG No. 17-3456 L01 Sheet 1 of 2 Landscape Plan Zenith Landscape Design Prepared 2 May 2017 DWG No. 17-3456 L02 Sheet 2 of 2 Landscape Plan Zenith Landscape Design Prepared 2 May 2017