Cavanagh v Wollondilly Shire Council (No 3)

[2020] NSWLEC 1018

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cavanagh v Wollondilly Shire Council (No 3) [2020] NSWLEC 1018
Hearing dates:	Conciliation conference 12 December 2019
Date of orders:	17 January 2020
Decision date:	17 January 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	See orders at [9]
Catchwords:	DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollondilly Local Environmental Plan 2011
Cases Cited:	Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181
Category:	Principal judgment
Parties:	Samuel Cavanagh (Applicant) Wollondilly Shire Council (Respondent
Representation:	Counsel: C Shaw (Solicitor) (Applicant) A Bradbury (Solicitor) (Respondent)   Solicitors: Shaw Reynolds Lawyers (Applicant) Bradbury Allen Love Lawyers (Respondent)
File Number(s):	2019/95577
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Wollondilly Shire Council of Development Application No. 784/2018 which seeks consent for a five lot subdivision of Lot6 DP1128635 to be carried out at 11 Westminster Place, Razorback.

2. A preliminary question to determine the permissibility of the proposed subdivision was decided by Robson J in Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181. That decision determined that consent can be granted to the proposed subdivision pursuant to the provisions of cl 4.1B of Wollondilly Local Environmental Plan 2011 (LEP).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 December 2019. I have presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. That agreement was based on amended plans prepared by the applicant, which, according to the council’s experts, addressed the contentions in the case.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. I have formed this state of satisfaction because the development is permissible; the lots are larger than provided for as minimum lots sizes under cl 4.1 of the LEP; adequate provision for servicing of the lots as required under cl 7.1 of the LEP has been demonstrated; no works are proposed in areas designated as “sensitive land” and I am satisfied the development will no adversely impact those areas (cl 7.3); the subdivision has been designed to minimise the extent of earthworks (cl 7.5); there is no evidence of contamination; a Fire Safety Authority has been issued by the Rural Fire Service and there are no jurisdictional issues that would prevent the grant of consent.

7. The conditions of consent address the agreed position of the experts in the proceedings.

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

9. The Court orders:

1. The Applicant is granted leave to amend the development application and rely on the amended plans and additional information, which involve amendments that the parties agree are minor. The amended and additional plans include the following:

Drawing(s)	Reference / Version	Prepared By	Dated
Drawing No: 150715-sub Staging Plan for Proposed Subdivision, Sheet 1 of 2, Lot 6 DP 1128635 Sheet 1 of 2	Revision G	Sydney Land Surveyors	12 December 2019
Drawing No: 150715-sub Staging Plan for Proposed Subdivision, Sheet 2 of 2, Lot 6 DP 1128635	Revision F	Sydney Land Surveyors	10 December 2019
Drawing NO 19048–1372-101, General Overview Plan, Sheet 1 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-102, General Arrangement Plan Sheet 2 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-103, Road Layout Plan 1 of 2 Sheet 3 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-104, Road Layout Plan 2 of 2 Sheet 4 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-105, Westminster Road Sections Sheet 5 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-106, Lot 1 & 2 Access Sections Sheet 6 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-107, Lot 3, 4 & 5 Access Sections Sheet 7 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-108, Earthworks Plan Sheet 8 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-109, Soil & Water Management Plan Sheet 9 of 10	Revision 0	CivPlan	5 December 2019
Drawing No: 19048-1372-110, Soil & Water Management Details Sheet 10 of 10	Revision 0	CivPlan	5 December 2019
Drawing No. 150715 – BF Plan of Proposed Subdivision – Bushfire APZ Aerial Sheet 1 of 1	Revision D	Bushfire APZ	4 December 2019
Drawing No. 150715 – BF Plan of Proposed Subdivision – Bushfire APZ Sheet 1 of 1	Revision D	Bushfire APZ	4 December 2019

2. The Appeal is upheld.

3. Development Application No. 784/2018 for a five lot subdivision of Lot 6 DP1128635 to be carried out at 11 Westminster Place, Razorback NSW 2571 is approved subject to the conditions set out in Annexure ‘A’.

……………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (144 KB)

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