Eden Fishermen's Recreation Club Ltd as Trustee for the Eas Investment Trust v Bega Valley Shire Council

[2023] NSWLEC 1131

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Eden Fishermen’s Recreation Club Ltd as Trustee for the EAS Investment Trust v Bega Valley Shire Council [2023] NSWLEC 1131

Hearing dates:

Conciliation conference on 20 March 2023

Date of orders:

24 March 2023

Decision date:

24 March 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) the appeal is upheld.

(2) Modification Application No 2021.376 (PAN-172113), to modify Development Consent No DA 2021.376 relating to land at 215-217 and 221-223 Imlay Street, Eden, is approved such that the consent is modified as set out in Annexure ‘A’.

(3) As a consequence of Order (2) Development Application No 2021.376 is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15. 4.55, 8.7

Land and Environment Court Act 1979, s 34

Texts Cited:

Bega Valley Shire Council’s Community Engagement Strategy 2019

Category:

Principal judgment

Parties:

Eden Fishermen’s Recreation Club Ltd as Trustee for the EAS Investment Trust (Applicant)
Bega Valley Shire Council (Respondent)

Representation:

Counsel:
C Leggat SC with C Koikas (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Kekatos Lawyers (Applicant)
Hall and Wilcox (Respondent)

File Number(s):

2022/156154

Publication restriction:

No

Judgment

1. COMMISSIONER: Eden Fishermen’s Recreation Club Ltd as Trustee for the EAS Investment Trust (the Applicant) has appealed the refusal by Bega Valley Shire Council (the Respondent) of its Modification Application No 2021.376 (PAN-172113), (the Proposed Modification) seeking to modify Development Consent No DA 2021.376 (the Original Consent) relating to land at 215-217 and 221-223 Imlay Street, Eden (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.55 of the EP&A Act.

3. The Applicant’s Modification Application was notified on 27 January under the provisions of Bega Valley Shire Council’s Community Engagement Strategy 2019, and no submissions were received in response to that notification.

4. On 20 March 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in‑principle agreement regarding the granting approval to the Applicant’s modification application, subject to conditions. No site inspection was required in relation to the appeal.

5. Under the Parties’ agreement, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal would be finalised through the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant approval to the Proposed Modification, and those requirements have been satisfied as follows:

1. in relation to the provisions of s 4.55 of the EP&A Act:

1. in relation to the provisions of s 4.55(2)(a), the Original Consent was for 3 residential flat buildings and this is not radically transformed by the changes in the Proposed Modification and I am satisfied that the development to which the application relates is substantially the same development as the development for which consent was originally granted;

2. in relation to the provisions of s 4.55(2)(b), there were no conditions imposed on the Original Consent as a result of concurrence requirements;

3. in relation to the provisions of ss 4.55(2)(c) and 4.55(2)(d), the application was publicly notified and no objector submissions were received in response to that notification;

4. in relation to the provisions of s 4.55(3), the Parties have advised, and I am satisfied, that the matters of relevance under s 4.15(1) of the EP&A Act have been taken into account in the assessment of the Proposed Modification, including:

1. the likely impacts of the development, including environmental impacts on both the natural and built environments, and the social and economic impacts in the locality;

2. the public interest.

5. the Parties have also advised, and I am satisfied that, the reasons given by the Respondent for the grant of the original consent have been considered in the assessment of the Proposed Modification.

2. the Proposed Development is acceptable having regard to the relevant provisions of s 4.15(1) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that:

1. the jurisdictional prerequisites, on which I must be satisfied before I can exercise the power under s 4.55 of the EP&A Act, have been satisfied;

2. approval of the Proposed Modification is in the public interest.

9. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

10. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

11. 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.

Orders

12. The Court orders that:

1. the appeal is upheld.

2. Modification Application No 2021.376 (PAN-172113), to modify Development Consent No DA 2021.376 relating to land at 215-217 and 221-223 Imlay Street, Eden, is approved such that the consent is modified as set out in Annexure ‘A’.

3. As a consequence of Order (2) Development Application No 2021.376 is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

M Chilcott

Commissioner of the Court

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Annexure A

Annexure B

Amendments

28 March 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the Applicant's appearance

Decision last updated: 29 March 2023