Boyce v Wingecarribee Shire Council

[2019] NSWLEC 1592

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boyce v Wingecarribee Shire Council [2019] NSWLEC 1592
Hearing dates:	Conciliation conference on 8 November 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”. (2)   The applicant is to pay, within 7 days of this agreement, the respondent’s costs of $5,000.00 for assessing the amended proposal. (3)   The appeal is upheld. (4)   Development Application 17/0972.01 for a 2 lot subdivision at 10-12 Tyndall Street, Mittagong NSW is approved subject to the conditions set out in Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Wingecarribee Local Environmental Plan 2010
Category:	Principal judgment
Parties:	Shelley June Boyce (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) A Kliese (Solicitor) (Respondent)   Solicitors: Boyce Law DR (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/294328
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application No. 17/0972.01 for a 2 lot subdivision at 10-12 Tyndall Street, Mittagong, NSW.

2. The background facts are set out in the Council’s Statement of Facts and Contentions (SOFAC) filed with the Court on 4 March 2019.

3. In accordance with the Court’s usual practice, a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), was convened between the parties on 8 November 2019. I presided over the conciliation.

4. During the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant’s amended application on a conditional basis.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this instance, the parties have explained how the jurisdictional prerequisites have been satisfied and provided me with a short statement which records their agreed position about the jurisdictional matters.

6. In that regard, the evidence is that concurrence has been provided by the RMS and its proposed conditions have been incorporated in the final conditions of consent. Additionally, I am satisfied on the evidence of the parties that the proposed development does not contravene the minimum lot size requirement in cl 4.1 of the Wingecarribee Local Environmental Plan 2010 (WLEP) and that the site has historically been used for residential purposes and the proposal seeks consent for continued residential land use.

7. The land is considered suitable for the proposed land use under cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land and draft the Remediation SEPP. The proposed development will also have a neutral or beneficial effect on water quality in accord with the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, which applies to the site.

8. Furthermore, all notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration and suitable conditions of consent are included in Annexure “A” to the agreement.

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

10. The Court orders:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

2. The applicant is to pay, within 7 days of this agreement, the respondent’s costs of $5,000.00 for assessing the amended proposal.

3. The appeal is upheld.

4. Development Application 17/0972.01 for a 2 lot subdivision at 10-12 Tyndall Street, Mittagong NSW is approved subject to the conditions set out in Annexure “A”.

………………………………

S Dixon

Senior Commissioner of the Court

Annexure A (531 KB, pdf)

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Decision last updated: 04 December 2019