Land and Environment Court New South Wales Medium Neutral Citation: North Sydney Council v Jetsking Round Pty Ltd [2019] NSWLEC 82 Hearing dates: 13 June 2019 Date of orders: 13 June 2019 Decision date: 13 June 2019 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [5] Catchwords: PRACTICE AND PROCEDURE – civil enforcement proceedings alleging use of premises contrary to Environmental Planning and Assessment Act 1979 (NSW) – successful mediation resulting in undertaking – summons dismissed Legislation Cited: Corporations Act 2001 (Cth) s 127 Environmental Planning and Assessment Act 1979 (NSW) ss 4.2, 4.3 North Sydney Local Environmental Plan 2013 Category: Procedural and other rulings Parties: North Sydney Council (Applicant) Jetsking Round Pty Ltd (Respondent) Representation: Counsel: S E Shneider, solicitor (Applicant) M J Finnane QC (Respondent) Solicitors: Houston Dearn O'Connor (Applicant) Prime Lawyers (Respondent) File Number(s): 2018/00387659 Publication restriction: Nil EX TEMPORE Judgment 1. This matter comes before me today as Duty Judge, having been the subject of mediation before Acting Commissioner Maston this morning. Mr S E Shneider, solicitor, appears for North Sydney Council ('applicant') and Mr M J Finnane QC, appears for Jetsking Round Pty Ltd ('respondent'). 2. These proceedings were commenced by summons filed 17 December 2018, seeking relief in relation to the alleged use of 20-28 Brook Street, Crows Nest ('premises') by the respondent, contrary to ss 4.2 and 4.3 of the Environmental Planning and Assessment Act 1979 (NSW). The applicant alleges that the respondent is using the premises for the provision of tourist and visitor accommodation, a prohibited purpose in the R4 High Density Residential Zone pursuant to the Standard Instrument – Principal Local Environmental Plan and the North Sydney Local Environmental Plan 2013. While the respondent has obtained development consent to use the premises for the purpose of a boarding house, the applicant alleges that it has failed to carry out development in accordance with the consent. 3. As a result of mediation, the parties have come to an agreement which has resulted in the respondent proffering an undertaking to the Court in the form of a document styled "Undertaking to the Court" filed in Court which I have initialled and placed with the Court file. The applicant is content with the undertaking and the consequential orders contained therein, including an order that each party pay its own costs and an order dismissing the summons. 4. I note that the undertaking has been signed by Mr Ricky Xie on behalf of the respondent and Mr Shneider had raised a concern, citing s 127 of the Corporations Act 2001 (Cth) ('Corporations Act'), that the undertaking, being signed by Mr Xie as Director and Secretary, may not be sufficient to bind the corporate respondent. To address this concern, Mr Finnane has indicated to the Court that he has received formal instructions to proffer the undertaking on behalf of the company. In those circumstances, the proffering of the undertaking is now acceptable to Mr Shneider and, considering s 127(4) of the Corporations Act, acceptable to the Court. Orders 1. Upon the proffering of the undertaking dated 13 June 2019, the Court orders: 1. Summons is dismissed. 2. No order as to costs. ********** 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 June 2019