Matthew Lepouris Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1350

Land and Environment Court New South Wales

Medium Neutral Citation: Matthew Lepouris Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1350 Hearing dates: Conciliation conference on 13 June 2018 Date of orders: 10 July 2018 Decision date: 10 July 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: MODIFICATION APPLICATION – application to vary condition of development consent - conciliation conference - agreement between the parties - orders Legislation Cited: Conveyancing Act 1919 Land and Environment Court Act 1979 Category: Principal judgment Parties: Matthew Lepouris Pty Ltd (First Applicant) WFM Motors Pty Ltd (Second Applicant) Woollahra Municipal Council (Respondent) Representation: Solicitors: B Hayward, Mills Oakley (Applicant) M Harker, Lindsay Taylor Lawyers (Respondent) File Number(s): 2017/371030 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Matthew Lepouris Pty Ltd and WFM Motors Pty Ltd against Woollahra Municipal Council's refusal of modification application no. DA 404/2009/5 seeking to modify development consent DA404/2009 by amending Condition A.1 which currently requires, inter alia, the registration of an instrument pursuant to section 88B of the Conveyancing Act 1919 restricting the use of six (6) parking spaces at 100 New South Head Road, Edgecliff NSW 2027. 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 s 34(3) of the Land and Environment Court Act 1979 are: 1. The appeal is upheld. 2. Modification application no. DA404/2009/5 seeking to modify development consent no. DA404/2009 to remove the restriction on the use of lots 13 to 18 (inclusive) in SP 832265 at 100 New South Head Road, Edgecliff NSW 2027, is approved subject to the consolidated conditions contained at annexure "A". ………………………. Joanne Gray Commissioner of the Court Annexure A (23.8 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: 10 July 2018