Hill v Yass Valley Council

[2022] NSWLEC 1084

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hill v Yass Valley Council [2022] NSWLEC 1084

Hearing dates:

Conciliation conference on 9 February 2022

Date of orders:

18 February 2022

Decision date:

18 February 2022

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Consent is granted to DA-200277 for the two-lot subdivision of Lot 1 DP 717073 (927 Marked Tree Road, Gundaroo) subject to the conditions set out at Annexure A.

Catchwords:

DEVELOPMENT APPEAL ––subdivision ––roadworks ––voluntary planning agreement ––conciliation conference ––agreement between the parties ––orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 7.7, 8.9

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Timothy Hill (Applicant)
Yass Valley Council (Respondent)

Representation:

Counsel:
T Hill (Litigant in Person) (Applicant)
T Bush (Solicitor) (Respondent)

Solicitors:
BAL Lawyers (Respondent)

File Number(s):

2021/336759

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against conditions of consent DA-200277 for a 2 lot residential subdivision (the Proposed Development) at 927 Marked Tree Road, Gundaroo legally described as Lot 1 in Deposited Plan 717073 (the Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 9 February 2022. I have presided over the conciliation conference.

3. At the 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 involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be s 7.7 of the EPA Act to impose a condition of consent to enter into a voluntary planning agreement in the terms of an offer made by the developer.

6. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed written submission on jurisdictional preconditions which I summarise below.

7. The agreed conditions of consent includes condition G(3) which requires the Applicant to enter into a voluntary planning agreement with the Respondent council in accordance with a letter of offer from the Applicant to the Respondent council dated 7 February 2022 and to complete the obligations pursuant to the voluntary planning agreement prior to the issue of a subdivision certificate. Such a condition can be imposed pursuant to s 7.7 of the EPA Act which provides at subs (3) that a consent authority can require a planning agreement to be entered into as a condition of a development consent, but only if it requires a planning agreement that is in the terms of an offer made by the developer in connection with the development.

8. The Court has been provided a copy of the letter of offer dated 7 February 2022 and I am satisfied that the agreed consent condition G(3) complies with s 7.7 of the EPA Act.

9. 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 under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders:

11. The Court orders:

1. The appeal is upheld.

2. Consent is granted to Development Application 200277 for the two-lot subdivision of Lot 1 DP 717073 (927 Marked Tree Road, Gundaroo) subject to the conditions set out at Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (290005, pdf)

Plan of subdivision (975814, pdf)

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Decision last updated: 18 February 2022