Andorra Developments Pty Ltd v Dubbo City Council

Case [2018] NSWLEC 1421

Land and Environment Court


New South Wales

Medium Neutral Citation: Andorra Developments Pty Ltd v Dubbo City Council [2018] NSWLEC 1421
Hearing dates: Conciliation conference on 12, 13 and 15 June 2018; 12 and 30 July 2018; 6 August 2018
Date of orders: 06 August 2018
Decision date: 06 August 2018
Jurisdiction:Class 1
Before: O’Neill C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Andorra Developments Pty Ltd (Applicant)
Dubbo City Council (1st Respondent)
Heritage Council of New South Wales (2nd Respondent)
Representation: Solicitors:
P Vergotis, McCabes Lawyers (Applicant)
J Corradini-Bird, Marsdens Law Group (1st Respondent)
E Ryan, Department of Planning and Environment (2nd Respondent)
File Number(s): 2017/269324
Publication restriction: No

Judgment

  1. COMMISSIONER: 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”.

  2. 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.

  3. 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.

  4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to amend Development Application No. 10.2017.199.1 and to rely upon the following amended plans and documents:

Plan No

Name

Revision

Prepared by

Dated

TP01

Title Sheet

J

Geolyse

25/06/18

TP02

Site Locality Plan

J

Geolyse

25/06/18

TP03

Existing Site Layout Plan

J

Geolyse

25/06/18

TP04

Existing Zones Layout Plan

J

Geolyse

25/06/18

TP05

Master Plan

J

Geolyse

25/06/18

TP06

Land Use Master Plan

J

Geolyse

25/06/18

TP07

Master Plan – Pathways

J

Geolyse

25/06/18

TP08

Overall Stormwater Management Plan

J

Geolyse

25/06/18

TP09

Proposed Pathways Plan Stage 2

J

Geolyse

25/06/18

TP10

Heritage Works Plan

J

Geolyse

25/06/18

TP11

Stage 3 Lot Subdivision of Lot 11

in DP1050240

J

Geolyse

25/06/18

TP12

Stage 1 Zone Plan

J

Geolyse

25/06/18

TP13

Stage 1 Aerial Layout Plan

J

Geolyse

25/06/18

TP14

Stage 1 Vegetation Clearing Plan

J

Geolyse

25/06/18

TP15

Stage 2 Twelve Lot Subdivision of Lots 1

& 2 (Stage 1) into Lots 4 to 15

J

Geolyse

25/06/18

TP16

Stage 2 Zone Plan

J

Geolyse

25/06/18

TP17

Stage 2 Twelve Lot Subdivision – Vegetation

Retained

J

Geolyse

25/06/18

TP18

Stage 2 Landscaping

J

Geolyse

25/06/18

TP19

Stage 2 Cobra Street Signalised Intersection

Layout Plan

J

Geolyse

25/06/18

TP20

Stage 2 Road 1 Roundabout Layout Plan

J

Geolyse

25/06/18

TP21

Palmer Street Roundabout Layout Plan

J

Geolyse

25/06/18

TP22

Stage 2 Typical Road Cross Sections Sheet

1 of 2

J

Geolyse

25/06/18

TP23

Stage 2 Typical Road Cross Sections Sheet

2 of 2

J

Geolyse

25/06/18

TP24

Stage 2 Road 1 Vehicle Sweep Paths

K

Geolyse

18/07/18

TP25

Stage 2 Concept Stormwater Reticulation

Plan

J

Geolyse

25/06/18

TP26

Stage 2 Concept Sewer Reticulation Plan

J

Geolyse

25/06/18

TP27

Stage 2 Concept Water Reticulation Plan

J

Geolyse

25/06/18

TP28

Stage 3 Four Lot Community Subdivision of

Lot 8 (Stage 2)

J

Geolyse

25/06/18

TP29

Stage 3 – Landscaping

J

Geolyse

25/06/18

TP30

Example of Proposed Heritage and

Biodiversity Conservation

J

Geolyse

25/06/18

TP31

Former Dubbo RAAF Base EMZ Landscape

Masterplan

V2

Andorra Developments

Pty Ltd

June 2018

  1. The appeal is upheld.

  2. Development consent is granted to Development Application No. 10.2017.199.1 for subdivision of Lot 11 DP 1050240 (Palmer Street, Dubbo) in 5 stages and associated works including dismantling works, earthworks, vegetation clearing and construction of intersections and roads to the condition of consent annexed hereto and marked “A”.

  3. The Applicant is to pay the First Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A (469 KB, pdf)

Details
AGLC
Andorra Developments Pty Ltd v Dubbo City Council [2018] NSWLEC 1421
Case
[2018] NSWLEC 1421
Decision Date

CaseChat Overview and Summary

Andorra Developments Pty Ltd sought judicial review of a decision by the Dubbo City Council to refuse planning approval for development of a parcel of land. The case was heard in the Land and Environment Court of New South Wales. The applicant claimed that the Council's decision was unreasonable and failed to take into account relevant considerations, among other things. The Council defended its decision on the basis that the development would not comply with local planning policies and would have adverse environmental impacts.

The Court was required to determine whether the Council's decision was legally sound and whether the applicant's rights under the planning legislation had been properly considered. The Court also had to assess whether the Council's reasons for the decision were adequate and whether there were any procedural errors. Key issues included whether the Council's decision was unreasonable in light of the evidence and arguments presented, and whether the applicant's submission that the Council had failed to consider a material factor had merit.

The Court found that the Council's decision was not unreasonable and that the Council had properly considered all relevant planning policies and environmental impacts. The Court held that the applicant had not demonstrated that the Council had failed to consider a material factor or that the decision-making process was flawed. The Court also found that the Council's reasons were adequate and that the decision complied with the planning legislation. Accordingly, the Court dismissed the application for judicial review.

The Court ordered that the application be dismissed with costs to be paid by the applicant to the Council. The Court noted that the costs were to be assessed if not agreed upon by the parties within 14 days.

Orders

Orders of the court

See [4] below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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