Lindfield Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1147

Land and Environment Court New South Wales

Medium Neutral Citation: Lindfield Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1147 Hearing dates: Conciliation conference on 23 March 2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Class 1 Before: Smithson C 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: Lindfield Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitor: Caitlin McJannett, Mills Oakley (Applicant) Jonathon Ede, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/211098 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. Noting that the parties bring to specific attention of the Court the undertaking of the applicant to arrange for the collection of the ecological genetic material referred to in the consent prior to any works being carried out on site, the final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. Leave is granted to the applicant to rely on the amended plans and documents listed in Condition 2 of the conditions attached in Annexure "A". 2. The applicant is to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 3. The applicant's clause 4.6 written request to vary the height limit is upheld. 4. The appeal is upheld. 5. Development Application No. DA0175 for demolition of existing structures and construction of a residential flat building including 69 units with basement parking at 51, 55 and 55A Lindfield Avenue, Lindfield is approved subject to the conditions in Annexure "A". ………………………. Jenny Smithson Commissioner of the Court Annexure A (219 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: 23 March 2018