Elder v Lake Macquarie City Council

[2019] NSWLEC 1184

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elder v Lake Macquarie City Council [2019] NSWLEC 1184
Hearing dates:	Conciliation conference on 12 April 2019
Date of orders:	24 April 2019
Decision date:	24 April 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [11] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Lake Macquarie Local Environment Plan 2014 Land and Environment Court Act 1979
Texts Cited:	Lake Macquarie Development Control Plan 2014
Category:	Principal judgment
Parties:	Connie Elder (Applicant) Lake Macquarie Council (Respondent)
Representation:	Solicitors: S Nevin,Sparke Helmore (Applicant) G Appleby, Holding Redlich (Respondent)
File Number(s):	2018/186019
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by Lake Macquarie City Council (hereafter the Council) of Development Application (DA) 1844/2017, which seeks subdivision of one lot into two lots, with proposed Lot 1 retaining an existing dwelling, on Lot 3 DP118182, also known as 1 Lurnea Crescent, Valentine.

2. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 12 April 2019. I presided over the conciliation conference. There were no objectors heard at this conciliation.

4. At the most recent conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DA 1844/2017 with conditions.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to DA 1844/2017 under appeal with conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.15(1) of the EPA Act 1979, as consistency with: Lake Macquarie Local Environment Plan 2014 (LMLEP); and Lake Macquarie Development Control Plan 2014 (LMDCP).

7. With regards to the LMLEP, the parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as follows:

1. Clauses 2.1 and 2.6 - the site is located within an R2 Low Density Residential zone. The proposed Torrens title subdivision is permissible in the zone and is not inconsistent with the zone and subdivision objectives.

2. Clause 4.1 – the proposed lot sizes satisfy the minimum lot size requirement.

3. Clauses 7.21 and 7.3 – based on the amended plans and supporting information, the proposed development is compatible with the flood hazard that has appropriate flood mitigation measures and will not adversely affect the existing flood behaviour on neighbouring properties.

8. Based on the amended plans and supporting documents, the contentions that relate to the controls as specified in the LMDCP are resolved to the satisfaction of the parties, specifically for water management, parking and flora/fauna protection.

9. I am satisfied that there are no jurisdictional impediments to this agreement and that the DA based on the amended plans with supporting documents and provided for in the conditions of consent, satisfies the requirements of s 4.15(1) of the EPA Act 1979.

10. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

11. The Court orders:

1. Leave is granted for the applicant to rely on the amended plan listed in condition 1 of Annexure A.

2. The applicant is to pay the Council’s costs under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000.

3. The appeal is upheld.

4. Development Application DA/1844/2017 for the residential subdivision (being 1 lot into 2 Torrens Title lots) of Lot 3 DP118182 (1 Lurnea Crescent, Valentine) is approved subject to the conditions in Annexure A.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A

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Decision last updated: 24 April 2019