Hill View Property Development Pty Ltd v Wollondilly Shire Council

[2018] NSWLEC 1684

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hill View Property Development Pty Ltd v Wollondilly Shire Council [2018] NSWLEC 1684
Hearing dates:	Conciliation conference on 2 November 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [11] 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 Wollondilly Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Hill View Property Development Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) M Harker, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2017/382203
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Wollondilly Shire Council of Development Application (DA) 010.2017.00000668.001, which seeks Torrens Title subdivision, land remediation and vegetation clearing on Lot 2 DP 588912, also known as 65 Marsh Street, Silverdale.

2. This Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.16 of the 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 2 November 2018. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation.

4. Following 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 is to uphold the appeal and grant consent to DA 010.2017.00000668.001 with conditions.

5. Under 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 the DA 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 the Wollondilly Local Environmental Plan 2011 (WLEP 2011), specifically cll 6.1 and 4.1.

7. The site is located within the Silverdale urban release area and therefore subdivision must be undertaken consistent with cl 6.1 of the WLEP 2011 Compliance with cl 6.1(1) is achieved through a satisfactory arrangement (for designated State public infrastructure) made with the Department of Planning, as communicated on 5 December 2018.

8. The parties explained that the amended plans and conditions of consent satisfy the requirements of the WLEP 2011 that relate to landscape and remnant native vegetation, specifically addressing the requirements of cl 4.1.

9. I am therefore 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 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. The Applicant is granted leave to amend development application DA010.2017.00000668.001 in accordance with the plans and documents specified in condition 1 of Annexure ‘A’.

2. The parties agree that the amendments made to the development application are not minor for the purposes of section 8.15(3) of the Environmental Planning & Assessment Act 1979. The Applicant is to pay the Respondent’s costs thrown away as a consequence of the amendments in the amount of $10,500.00.

3. The appeal is upheld.

4. Development application DA010.2017.00000668.001 for a 78 lot Torrens Title subdivision of Lot 2 in DP 588912, remediation of land, and vegetation clearing in 3 stages, is approved subject to the conditions in Annexure A.

……………………….

S Bish

Commissioner of the Court

Annexure A

Plans

Decision last updated: 24 December 2018