Agnew v Yass Valley Council

[2024] NSWLEC 1326

Land and Environment Court

New South Wales

Medium Neutral Citation:

Agnew v Yass Valley Council [2024] NSWLEC 1326

Hearing dates:

Conciliation conference 7 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No 230052 is refused.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – appeal dismissed and development application refused – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Michael Agnew (Applicant)
Yass Valley Council (Respondent)

Representation:

Counsel:
A McKelvey (Solicitor) (Applicant)
A Menyhart (Solicitor) (Respondent)

Solicitors:
Sparke Helmore Lawyers (Applicant)
BAL Lawyers (Respondent)

File Number(s):

2023/333775

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA230052 (DA) by Yass Valley Council.

2. The DA seeks consent for the construction of a self-storage unit facility and associated development at 25-27 Laidlaw Street, Yass legally described as Lots 5 and 6 DP526119 and Lot 22 Section 26 DP759136 (site).

Agreement reached

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 7 June 2024, and at which I presided. Prior to the conciliation conference the parties had filed an agreement relating to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court dismissing the appeal and refusing to grant consent to the DA.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions. The parties provided an agreed statement of jurisdictional prerequisites indicating why they believed the parties’ agreed decision is one the Court can make in the proper exercise of its functions. Mindful of this statement and discussions during the conciliation conference, I find the following in relation to jurisdiction.

Jurisdiction

6. In my experience, it is unusual for a circumstance to come about wherein an agreement made under s 34 of the LEC Act relates to the refusal of the grant of consent. However, that is not problematic of itself. The process flow in relation to the evaluation and determination of a development application, whether consent is granted or refused, can be seen to be as follows. Initially there is an evaluation of the development application. This is undertaken through “(taking) into consideration” relevant matters under s 4.15(1) of the EPA Act, which are well known.

7. Following this evaluation provision, there is s 4.16 of the EPA Act, which is concerned with the determination of development applications. Section 4.16(1) provides as follows:

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

8. According to their agreed statement of jurisdictional prerequisites, there has been the relevant evaluation of the subject DA (under s 4.15(1) of the EPA Act). The particulars of this were explained to me during the course of the conciliation conference, where it was explained there had been professional evaluation by Council officers, which included the consideration of lay submissions made following notification. Council’s statement of facts and contentions filed on 4 December 2023 outlines a series of reasons why the DA did not warrant the grant of consent. Essentially now, I see that the consequence of the evaluation of the DA is that it has been agreed that the DA as proposed could not merit the grant of consent.

9. It does not seem to me that there is a need to go further than this in accepting that the position proffered by the parties is one the Court can make in the proper exercise of its functions. There is a general power to refuse the grant of consent to a development application on its merits available to a consent authority, or the Court acting in the shoes of a consent authority in these proceedings. Such a determination decision is available after the evaluation of the proposal under s 4.15(1) of the EPA Act. That is to say, even if a development application is permissible in the zone and does not contravene development standards in relevant environmental planning instruments (common points of interest in relation to the question of the powers of the Court to determine development applications), such circumstances do not suggest any obligation to approve such a development application.

Conclusion

10. I am satisfied that there has been the required evaluation of the proposal under s 4.15(1) of the EPA Act and that the parties’ decision has come about as a consequence of this evaluation. The parties’ decision to refuse the grant of consent is available to the Court under s 4.16(1)(b) of the EPA Act.

11. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

13. The Court orders that:

1. The appeal is dismissed.

2. Development Application No 230052 is refused.

.…………………………

P Walsh

Commissioner of the Court

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Decision last updated: 14 June 2024