Adrian John Turnbull v Kiama Municipal Council [2016] NSWLEC 1638

Adrian John Turnbull v Kiama Municipal Council [2016] NSWLEC 1638

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with that agreement without undertaking a merit assessment of the issues originally in dispute.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Class 1 Development Application Appeal / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application approved subject to conditions; applicant to pay respondent's costs thrown away as agreed or assessed.
Legal Topics
['development Application' 'conciliation Conference' 'agreement Between the Parties' 's 34(3) Orders' 'dual Occupancy and Strata Subdivision' 'costs Thrown Away']
['planning and Environment Law' 'land and Environment Court Procedure'] ['development Application' 'conciliation Conference' 'agreement Between the Parties' 's 34(3) Orders' 'dual Occupancy and Strata Subdivision' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 1 Development Application Appeal / Final Orders Following Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court should dispose of the proceedings in accordance with the parties' agreement under s 34(3) of the Land and Environment Court Act 1979." 'Whether development application no. 10.2016.41.1 for proposed dual occupancy and strata subdivision at 3 Bourrool Street, Kiama NSW 2533 should be approved subject to conditions.']

Ratio Decidendi

Because the parties reached an agreement under s 34(3) of the Land and Environment Court Act 1979 and the Commissioner was satisfied that the agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required to dispose of the proceedings in accordance with that agreement without undertaking a merit assessment of the issues originally in dispute.

Court Disposition

Appeal upheld; development application approved subject to conditions; applicant to pay respondent's costs thrown away as agreed or assessed.

Orders

  • ['The Applicant is granted leave to rely on the amended drawings dated December 2016 (as referred to in condition 1 of Annexure "A") for the purpose of the development application.' 'The appeal is upheld.' 'Development application no. 10.2016.41.1 lodged on 11 March 2016 for proposed dual occupancy and strata...