Active Kids Pre School Centre of Excellence Pty Ltd v North Sydney Council [2018] NSWLEC 1469

Land and Environment Court New South Wales

Medium Neutral Citation: Active Kids Pre School Centre of Excellence Pty Ltd v North Sydney Council [2018] NSWLEC 1469 Hearing dates: Conciliation conference on 28 August 2018 Date of orders: 28 August 2018 Decision date: 28 August 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – child care centre - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Active Kids Pre School Centre of Excellence Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: M Staunton (Applicant) T To (Respondent)

Solicitors: Sattler & Associates Pty Ltd (Applicant) Sparke Helmore (Respondent) File Number(s): 2017/294857 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Active Kids Preschool Centre of Excellence against the actual refusal by North Sydney Council of DA221/2016, a development application for alterations and additions to the existing child care centre on 37 Murdoch Street and the conversion of an existing dwelling at 39 Murdoch Street for its use in conjunction with number 37 for a child care centre (on Lot 1 607324 and Lot C 158882). As a result of amendments to the application, the capacity that is now sought for the proposed centre is 50 places. 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. Leave is granted to the applicant to rely upon the amended plans, Plan of Management and reports as set out in Annexure "A": 2. The Appeal is upheld. 3. Development Application No. DA221/2016 for alterations and additions to the existing child care centre on 37 Murdoch Street and the conversion of an existing dwelling at 39 Murdoch Street for its use in conjunction with number 37 for a 50 place child care centre is approved subject to the conditions in Annexure "A". ………………………. Commissioner Gray Annexure A (946 KB, pdf) Plans (10.1 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: 04 September 2018