Alora Davies Developments 103 Pty Ltd v Wollondilly Shire Council

[2018] NSWLEC 1214

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alora Davies Developments 103 Pty Ltd v Wollondilly Shire Council [2018] NSWLEC 1214
Hearing dates:	Conciliation conference on 14 February and 20 March 2018
Date of orders:	04 May 2018
Decision date:	04 May 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:	Alora Davies Developments 103 Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Solicitors: C Rose, Swaab Attorneys (Applicant) D Baird, Marsdens Law Group (Respondent)
File Number(s):	2017/324028
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Alora Davies Developments 103 Pty Ltd against Wollondilly Shire Council’s deemed refusal of DA434/2017 for the subdivision and creation of thirty-two (32) residential lots, construction of new roads, demolition of existing dwelling and structures, filling and compacting of the existing dam and partial filling of the dam on the northern boundary of Lot 5 in DP 245153 on land known as 94 Rita Street, Thirlmere NSW 2572

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 s34(3) of the Land and Environment Court Act 1979 are:

1. The applicant is granted leave to amend the development application by relying on the following plans:

Plan Title	Author/Drawn By	Plan Reference	Dated
Plan of Subdivision of Lot 5 DP 245153	Australian Survey Solutions (Paul Brandon)	Surveyor’s ref: 160810	24 January 2018, rev: C
Landscape Street Tree Plan	HLS Pty Ltd (Lindy Lean)	L01, issue P2	29 June 2017
Biobasin Landscape Plan	HLS Pty Ltd (Lindy Lean)	L02, issue P1	29 June 2017
Development Overview Plan & General Notes	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-A050, rev: D	23 January 2018
Sediment & Erosion Control Plan & Demolition Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-B300, rev: E	23 January 2018
Sediment & Erosion Control Details	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-B310, rev: B	18 January 2018
Earthworks Grading Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C100, rev: D	18 January 2018
Earthwork Sections Section A-A	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C200, rev: A	18 January 2018
Earthwork Sections Section B-B	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C201, rev: A	18 January 2018
Earthwork Sections Section C-C	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C202, rev: A	18 January 2018
Earthwork Sections Section D-D	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C203, rev: A	18 January 2018
Earthwork Sections Section E-E	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C204, rev: A	18 January 2018
Earthworks Cut & Fill Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-C500, rev: B	29 September 2017
Roadworks Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-D100, rev: D	23 January 2018
Roadworks Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-D101, rev: B	23 January 2018
Rita Street (21-MRC01) & Proposed road 1 (21-MRC02) Longitudinal Section	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-D200, rev: B	29 September 2017
Proposed road 2 (21-MRC02) Longitudinal Section	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-D201, rev: B	29 September 2017
Drainage Plan	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-E100, rev: E	23 January 2018
OSD Calculations (Pre-development Layout)	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-E600, rev: D	23 January 2018
OSD Calculations (Post-development Layout)	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-E601, rev: B	23 January 2018
Water quality catchment plan, model & results	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-E700, rev: C	23 January 2018
Retaining Walls Plans	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-G200, rev: B	23 January 2018
Retaining Walls Details	Martens & Associates Pty Ltd	Project no. P1605525, dwg no. PS02-G201, rev: A	18 January 2018

2. The appeal is upheld;

3. Development Application No. 010.2017.00000434.001 for subdivision and creation of thirty-two(32) residential lots, construction of new roads, demolition of existing dwelling and structures, partial filling of a dam, earthworks and associated works on land known as 94 Rita Street, Thirlmere NSW 2572, is approved subject to the conditions of consent set out in Annexure A.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (156 KB, pdf)

Attachment A (324 KB, pdf)

Attachment B (991 KB, pdf)