Higgs v Inner West Council [2018] NSWLEC 1510

Land and Environment Court New South Wales

Medium Neutral Citation: Higgs v Inner West Council [2018] NSWLEC 1510 Hearing dates: Conciliation conference on 28 September 2018 Date of orders: 28 September 2018 Decision date: 28 September 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Peter Higgs (Applicant) Inner West Council (Respondent) Representation: Solicitors: G Hartley, Hartley Solicitors (Applicant) S Turner, Inner West Council (Respondent) File Number(s): 2018/42595 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by Peter Higgs against the actual refusal by Inner West Council of development application number 201700120 for the conversion of an existing dwelling located over two lots into two semi-detached dwellings with rear garage at 45 Union Street, Dulwich Hill (Lots 23 and 24 DP 1054). 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 applicant is granted leave to rely on the plans listed under Condition 1 below the heading 'The development must be carried out in accordance with plans and details listed below:' in Annexure 'A'. 2. The applicant is to pay $4,500.00 for costs thrown away by the respondent in accordance with s8.15 of the Environmental Planning and Assessment Act 1979. 3. Appeal upheld. 4. Development application number 201700120 for conversion of an existing dwelling into two semi-detached dwellings with attic garages and boundary realignment at 45 Union Street, Dulwich Hill us approved subject to the conditions in Annexure 'A'. ………………………. D M Dickson Commissioner of the Court Annexure A (215 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: 28 September 2018