HBU Projects No 2 Pty Ltd v Lake Macquarie City Council

[2018] NSWLEC 1450

Land and Environment Court

New South Wales

Medium Neutral Citation:	HBU Projects No 2 Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1450
Hearing dates:	Conciliation conference on 7, 14 and 28 June 2018; 30 July 2018
Date of orders:	21 August 2018
Decision date:	21 August 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	HBU Projects No 2 Pty Ltd (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Solicitors: G Long, Long Legal (Applicant) S Lucy, Lake Macquarie City Council (Respondent)
File Number(s):	2018/75929
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by HBU Projects No 2 Pty Ltd against the actual refusal by Lake Macquarie City Council of DA/1582/2017 for proposed multi-dwelling housing at 37 Wilsons Road, Mount Hutton (Lot 103 DP 1076796).

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant be granted leave to rely upon the following amended plans:

Plan	Drawing	Revision	Date
1.1	Architectural Plans	2.08.2018
(a)	Cover sheet		DA-001	J
(b)	Roof Analysis Plan		DA-001	J
(c)	Lot Plan		DA-100	J
(d)	Ground Floor Site Plan		DA-101	J
(e)	First Floor Site Plan		DA-102	J
(f)	Elevations		DA-201	J
			DA-202	J
			DA-203	J
(g)	Unit 01-03 Plans		DA-104	J
(h)	Unit 01-03 Elevations		DA-402	J
(i)	Unit 01-03 Section		DA-402	J
(j)	Unit 04-03 Plans		DA-404	J
(k)	Unit 04-06 Elevations		DA-405	J
(l)	Unit 04-06 Sections		DA-406	J
(m)	Unit 07 Plans		DA-407	J
(n)	Unit 07 Elevations and Section		DA-408	J
(o)	Sun Diagrams		DA-500	J
(p)	Materials Selection		DA-501	J
			DA-502	J
1.2	Landscape Plans	8.08.2018
(a)	Cover Sheet		L000	K
(b)	Landscape Plan		L301	K
(c)	Landscape Details		L401	G
(d)	Indicative Plant Schedule		L501	H
1.3 (a)	Sedimentation and Erosion Control Plan	C01	8	7.08.2018
(b)	Sedimentation and Erosion Control Details	C02	5
1.4 (a)	Stormwater Plan	C03	8	7.08.2018
(b)	Stormwater Details	C04	5
1.5 (a)	Turning Path Entry Plan Sheet 1	T01	3	7.08.2018
(b)	Turning Path Entry Plan Sheet 2	T02	3
(c)	Turning Path Entry Plan Sheet 3	T03	3
(d)	Turning Path Exit Plan Sheet 1	T04	3
(e)	Turning Path Exit Plan Sheet 2	T05	3
(f)	Turning Path Exit Plan Sheet 3	T06	3

2. The Applicant pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000 within 30 days from the date of these Orders.

3. The appeal be upheld.

4. Development consent be granted to DA/1582/2017, as amended, for multi-dwelling housing at Lot 103 DP 1076796, 37 Wilsons Road, Mount Hutton subject to the conditions set out in Annexure A.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (63.2 KB, pdf)