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New South Wales |
Case Name: | Heinrich Ruiz de Roxas v Bega Valley Shire Council |
Medium Neutral Citation: | [2017] NSWLEC 1633 |
Hearing Date(s): | Conciliation conference on 29 May 2017 |
Date of Orders: | 10 November 2017 |
Decision Date: | 10 November 2017 |
Jurisdiction: | Class 1 |
Before: | Dixon 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: | Heinrich Ruiz de Roxas (Applicant) |
Representation: | Solicitors: |
File Number(s): | 2017/35436 |
Publication Restriction: | No |
Judgment
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”.
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.
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.
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 section 96 modification application 2014.430 lodged on 15 May 2016 seeking to modify conditions 11 and 66 is approved subject to the conditions in Annexure 'A'.
(3)
(a)Condition 11 is amended to read as follows:
“Payment to Council of the following contributions pursuant to Section 94A of the Environmental Planning and Assessment Act and Bega Valley Section 94 and 94A Contributions Plan 2014 prior to the issue of the occupation certificate for each nominated stage within the development.
Indexation: Where the monetary contribution is not paid before the first anniversary of the date of this development consent, the contribution amount must be indexed between the date of the consent and the date of payment, in accordance with annual movements in the Consumer Price
Index (All Groups Index) for Sydney published by the Australian Statistician.
Time for payment: Deferred payments of contributions may be accepted in certain circumstances and will need to be secured by bank guarantee. Refer to the contributions plan for Council’s policy on deferred payments.Reason: To ensure the provision and adequacy of public infrastructure within the Bega Valley Shire for the users of new developments.”
(b)Condition 66 is amended to read as follows:
“Prior to the issue of any occupation certificate for any part of the approved development, Cattle Bay Road shall be designed and constructed in accordance with the engineering plans prepared by Tasman Engineering Consultants entitled “Cattle Bay Road Upgrade Concept” drawing number E191 (sheets 1 to 5 inclusive) dated 19 June 2017.”
……………………….
Susan Dixon
Commissioner of the Land and Environment Court of NSW
Annexure A (C) (260 KB, pdf)
- AGLC
- Heinrich Ruiz de Roxas v Bega Valley Shire Council [2017] NSWLEC 1633
- Case
- [2017] NSWLEC 1633
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the council's decision was lawful, reasonable, and whether the council had followed the required statutory procedures. The applicant contended that the council's decision was based on irrelevant considerations and failed to adequately address the merits of the application. Additionally, the applicant argued that the council did not consider all relevant factors and that the decision-making process was flawed.
The court found that the council's decision was indeed unreasonable and that the decision-making process was flawed. The council had failed to properly consider the merits of the application and had relied on irrelevant considerations. The court held that the council's failure to follow statutory procedures and provide a proper rationale for its decision rendered the decision invalid. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the law.
The court ordered that the council reconsider the applicant's development approval application, ensuring that all relevant considerations were properly addressed and that the statutory requirements were followed. The court further directed that the council provide a detailed written statement of reasons for its decision, explaining how the statutory considerations had been addressed and how the merits of the application had been evaluated.
Orders
Orders of the court
See (4) below
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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