Rudder Development Four Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1355

Land and Environment Court New South Wales

Medium Neutral Citation: Rudder Development Four Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1355 Hearing dates: Conciliation conference on 16 May 2018 Date of orders: 11 July 2018 Decision date: 11 July 2018 Jurisdiction: Class 1 Before: Dixon SC 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: Rudder Development Four Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: H Kahagalle, Addisons Lawyers (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/340819 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. The final orders to give effect to the parties' agreement under s 34(3) of the Land and Environment Court Act 1979 are: 1. Leave granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions annexed and marked "A". 2. The request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the height control in clause 4.3 of the Ku-ring-gai Local Environmental Plan 2015 is upheld. 3. The appeal is upheld. 4. Development Application No. DA0438/17 for demolition of existing structures and construction of a five storey multi-unit (46 dwellings) development with basement car parking and associated works be approved in accordance with Annexure "A". ………………………. Senior Commissioner Dixon Annexure A (323 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: 11 July 2018