Schwartz Family Co Pty Ltd v Cessnock City Council [2018] NSWLEC 1140

Land and Environment Court New South Wales

Medium Neutral Citation: Schwartz Family Co Pty Ltd v Cessnock City Council [2018] NSWLEC 1140 Hearing dates: Conciliation conference on 16 March 2018 Date of orders: 19 March 2018 Decision date: 19 March 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – use of a marquee - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Schwartz Family Co Pty Ltd (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: Mr P Jackson, Pikes & Verekers Lawyers (Applicant) Mr A McKelvey, Sparke Helmore (Respondent) File Number(s): 2017/102797 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Schwartz Family Co Pty Ltd against Cessnock City Council's refusal of development application number 8/2016/288/1 for the use of a marquee for up to 26 days per calendar year at the subject site 39 Lovedale Road, Lovedale. 2. 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 appeal is upheld; 2. Development Application No. 8/2016/288/1 for the use of a marquee for up to 26 days per calendar year at 39 Lovedale Road, Lovedale (occupying part of Lot 3 DP 1073826 and SP 80443) is approved subject to the conditions contained at Annexure A. ………………………. Joanne Gray Commissioner of the Court Annexure A (123 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: 20 March 2018