Eden Cattle Bay Marina Pty Ltd v Bega Valley Shire Council

[2018] NSWLEC 1154

Land and Environment Court

New South Wales

Medium Neutral Citation:	Eden Cattle Bay Marina Pty Ltd v Bega Valley Shire Council [2018] NSWLEC 1154
Hearing dates:	Conciliation conference on 26 March 2018
Date of orders:	27 March 2018
Decision date:	27 March 2018
Jurisdiction:	Class 1
Before:	Bish 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:	Eden Cattle Bay Marina Pty Ltd (Applicant) Bega Valley Shire Council (Respondent)
Representation:	Solicitor: Vasili Conomos, Conomos Legal (Applicant) Michael McMahon, M E McMahon & Associates (Respondent)
File Number(s):	2017/312059
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. The applicant is granted leave to amend modification application DA2014.430 such that the only amendment to the prior approval relating to sewerage and water disposal will be amendment to condition 80. The court notes the specific inclusion within condition 80, which now provides for individual and separate metering for the marina. The court also notes the specific inclusion within condition 80 for sewerage disposal and water usage to be calculated in accordance with the High Consumption Charge mechanism based on actual usage only.

3. Modification application DA2014.430 is approved subject to the conditions in Annexure A.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (237 KB, pdf)