Attar Constructions Pty Ltd v Campbelltown City Council

[2018] NSWLEC 1637

Land and Environment Court

New South Wales

Medium Neutral Citation:	Attar Constructions Pty Ltd v Campbelltown City Council [2018] NSWLEC 1637
Hearing dates:	Conciliation conference on 1 and 22 November 2018
Date of orders:	07 December 2018
Decision date:	07 December 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Campbelltown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Attar Constructions Pty Ltd (Applicant) Campbelltown City Council (Respondent)
Representation:	Solicitors: D Baird, Baird Lawyers (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2018/265241
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Campbelltown City Council of development application DA 1914/2018/DA-RS for consolidation of two lots into one, the construction of four attached two storey dwellings on the consolidated lot, and subdivision of the lot into four strata allotments. The site is at 14-16 Poulton Terrace Campbelltown, also described as Lots 4407 and 4408 DP 1217018 (site).

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.

3. My power to dispose of these proceedings in accordance with the parties’ decision under s 34(3) is dependent on the satisfaction of any relevant jurisdictional pre-requisites. I have considered the advice of the parties in regard to jurisdictional pre-requisites. Having regard to this advice I am satisfied, in regard to cl 7.10 of Campbelltown Local Environmental Plan 2015, that the required essential services are available or that adequate arrangements have been made to make them available when required.

4. As the presiding Commissioner, and again in accordance with the advice provided, I am satisfied that the decision of the parties 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 requires me to “dispose of the proceedings in accordance with the decision”.

5. 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.

6. 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.

7. 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 rely on amended plans (detailed in Condition 1 to Annexure “A”).

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $2,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development Application No. 1914/2018/DA-RS (as amended) for the consolidation of lots 4407 and 4408 in DP 1217018 into one lot, the construction of three (3) attached two storey dwellings on the consolidated lot, and subdivision of the lot into three (3) strata allotments, on the land at 14 - 16 Poulton Terrace, Campbelltown (Lots 4407 and 4408 in DP 1217018) is approved subject to the conditions of consent contained in Annexure "A" hereto.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (260 KB, pdf)

Plans (3.23 MB, pdf)