Miller v Northern Beaches Council [2018] NSWLEC 1126

Land and Environment Court New South Wales

Medium Neutral Citation: Miller v Northern Beaches Council [2018] NSWLEC 1126 Hearing dates: Conciliation conference on 9 March 2018 Date of orders: 09 March 2018 Decision date: 09 March 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) 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: Chelsea Miller (1st Applicant) Gabriel Miller (2nd Applicant) Northern Beaches Council (Respondent) Representation: Solicitor: Tony Sattler, Sattler & Associates Pty Ltd (Applicants) Eskil Julliard, Northern Beaches Council (Respondent) File Number(s): 2017/354500 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal seeking to modify a Court granted consent, proceedings 10411 of 2010, as modified by Council in N0051/09/S96/1 in 2012 and as modified by the Court in proceedings 10792 of 2014, for subdivision of two (2) lots into four (4) lots. The subdivision is proposed at 232-234 Barrenjoey Road, Newport. 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 application is upheld. 2. Pursuant to section 96(8) of the Environmental Planning and Assessment Act 1979 (NSW), the development consent granted by the Court in proceedings 10411 of 2010, as modified by Council in N0051/09/S96/1 in 2012 and as modified by the Court in proceedings 10792 of 2014, for the subdivision of 2 lots into 4 lots at 232 and 234 Barrenjoey Road, Newport is modified in accordance with the conditions set out in Annexure "A" to this agreement. ………………………. D M Dickson Commissioner of the Court Annexure A (125 KB, 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 March 2018