Land and Environment Court New South Wales Medium Neutral Citation: Celik v Canterbury-Bankstown Council [2018] NSWLEC 1430 Hearing dates: Conciliation conference on 13 August 2018 Date of orders: 14 August 2018 Decision date: 14 August 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: MODIFICATION APPLICATION – application to modify consent to allow a mezzanine level in each garage of a dual occupancy - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Nathan Celik (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Solicitors: P Rigg, Peter R Rigg (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/34075 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Nathan Celik against the actual refusal by Canterbury-Bankstown Council of modification application No. 593/2014/B. The application seeks consent to modify an approved dual occupancy by construction of a mezzanine level above each of the two (2) approved double height garages at 36 Undercliffe Road, Earlwood (Lot 40 Sec C DP 4709). 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. Leave is granted to amend the application that is the subject of these proceedings, being the application DA-593/2014/B to modify Development Consent No. DA-593/2014, by substituting the following plans as the plans relied upon for the purpose of the application: Drawing No. and Title Revision Prepared by Dated Project: Proposed Mezzanine Level h Archispectrum 13.08.2018 DA01 - Basement & Mezzanine Plan Project: Proposed Mezzanine Level h Archispectrum 13.08.2018 DA02– Section 1. Development Consent No. DA-593/2014, as granted by the Land and Environment Court on 3 February 2016 for the "demolition of the existing dwelling and construction of a dual occupancy on the land known as Lot 40 Sec C DP 4709, (No. 36) Undercliffe Road, Earlwood", is modified as set out in Annexure "A". 2. As a consequence of order 2.3, Development Consent No. DA-593/2014 is subject to the consolidated, modified conditions of consent as set out in Annexure "B". ………………………. Commissioner Gray Annexure A (113 KB, pdf) Annexure B (212 KB, pdf) Plans (2.18 MB, 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: 14 August 2018