Vickery v Kiama Municipal Council [2018] NSWLEC 1477

Land and Environment Court New South Wales

Medium Neutral Citation: Vickery v Kiama Municipal Council [2018] NSWLEC 1477 Hearing dates: Conciliation conference on 3 – 4 September 2018 Date of orders: 06 September 2018 Decision date: 06 September 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – dual occupancy - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Joanna Christine Vickery (1st Applicant) Kirsty Lyn Fay (2nd Applicant) Kiama Municipal Council (Respondent) Representation: Counsel: S Nash (Applicants)

Solicitors: Planning Development Commercial Lawyers (Applicants) P Holland, McCullough Robertson (Respondent) File Number(s): 2018/74067 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Joanna Christine Vickery and Kirsty Lyn Fay against the actual refusal by Kiama Municipal Council of Development Application No. DA-10.2017.241.1. The application is seeking consent for the construction of an attached dual occupancy and two (2) lot Torrens title subdivision at 11 Northpoint Place, Bombo (Lot 16 DP1206612). 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. Development application No. 10.2017.241.1, for the construction of an attached dual occupancy and two lot Torrens title subdivision on the land described as Lot 16 in Deposited Plan 1206612 also known as 11 Northpoint Place, Bombo, is approved subject to the conditions in Annexure 'A' hereto. ………………………. Commissioner Gray Annexure A (218 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: 07 September 2018