Brenham Pty Ltd v North Sydney Council [2019] NSWLEC 1212

Land and Environment Court New South Wales

Medium Neutral Citation: Brenham Pty Ltd v North Sydney Council [2019] NSWLEC 1212 Hearing dates: Conciliation Conference on 13 May 2019 Date of orders: 15 May 2019 Decision date: 15 May 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The appeal is upheld. (2) Modification Application No. No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence, is approved, subject to the consolidated conditions of consent at Annexure A. Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – height of the internal secondary palisade fence and gate – State heritage item. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Brenham Pty Limited v North Sydney Council [2016] NSWLEC 1343 Category: Principal judgment Parties: Brenham Pty Ltd (Applicant) North Sydney Council (Respondent) Representation: Counsel: A Hemmings (Applicant)

Solicitors: Hones Lawyers (Applicant) K Law, Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2018/236368 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. 382/14/2 to modify Development Consent 382/14 to increase the height of the internal secondary palisade fence and gate located behind the existing front boundary fence (the proposal) at 3 Amherst Street, Cammeray (the site) by North Sydney Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 13 May 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.