John v Mid-Western Regional Council

[2020] NSWLEC 1156

Land and Environment Court

New South Wales

Medium Neutral Citation:	John v Mid-Western Regional Council [2020] NSWLEC 1156
Hearing dates:	Conciliation conference on 30 March 2020
Date of orders:	01 April 2020
Decision date:	01 April 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders that: (1) The application the subject of these proceedings, made pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, is approved. (2)   That development consent granted by this Court in proceedings number 12269 of 2007 for the subdivision of the subject site, and as previously modified by this Court in proceedings number 322910 of 2017, 76402 of 2018 and 152087 of 2019, is further modified subject to the conditions included at Annexure “A”.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Telecommunications Act 1997 (Cth)
Category:	Principal judgment
Parties:	Hylton Arnold John (Applicant) Mid-Western Regional Council (Respondent)
Representation:	Counsel: D Loether (Solicitor) (Applicant) S Puckeridge (Solicitor) (Respondent)   Solicitors: Bartier Perry Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2020/14111
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings relate to an application to the Land and Environment Court (Court) pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to further modify development consent no. DA0642/2008 (Consent) granted by the Court in Proceedings No. 12269 of 2007 and as later modified through Proceedings Numbers 322910 of 2017, 76402 of 2018 and 152087 of 2019.

2. The modification application seeks the removal of condition 27(b) of the Consent, which provides:

“Prior to the issue of a Subdivision Certificate, Council is to be supplied with:

…

(b) a certificate from a telecommunications supplier indicating that satisfactory arrangements have been made for provision of telephone services to the subdivision.”

3. The Council notified the application in accordance with the requirements of the EPA Act, with the notification period ending on 8 February 2020.

4. One submission was received, raising the following issues:

“1. Every lot owner of the subdivision should have the option of having a landline phone service;

2. There is no guarantee all of the lots will have a good reliable mobile phone service; and,

3. For safety reasons people need access to reliable phone service, i.e. landlines, especially on Rural Residential lots.”

5. Part 20A of the Telecommunications Act 1997 (Cth) applies to the development. Since the approval of the original subdivision by the Court, the Minister has exempted certain types of developments in rural and remote areas from the requirements to install fibre-ready pit and pipe infrastructure. This exemption applies to the development.

6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 March 2020. I presided over the conciliation conference.

7. 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 consent to the modification application for the deletion of condition 27(b) of the Consent.

8. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. The parties explained how the jurisdictional prerequisites have been satisfied in a short statement which I have marked Exhibit 1 and retained on the Court file.

Jurisdictional considerations

10. I accept that under Div 4.9 of the EPA Act, the Court may modify a development consent if it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified.

11. In this instance, the Consent related to the subdivision of an existing parcel of land into 11 Torrens Title lots.

12. The development, as modified, pursuant to the subject modification application remains an 11 lot Torrens Title subdivision. The lots within that subdivision are unchanged. Therefore the concerns raised by the objector are not a proper basis for the refuel of this application.

13. The parties submit and I accept on the evidence before me that the modification to the Consent simply deletes an obsolete condition. The development as modified, pursuant to the subject application, is therefore substantially the same development as the development for which the Consent was originally granted according to s 4.55 of the EPA Act.

14. Accordingly, 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.

15. 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.

16. The Court orders that:

1. The application the subject of these proceedings, made pursuant to section 4.55(8) of the Environmental Planning and Assessment Act 1979, is approved.

2. That development consent granted by this Court in proceedings number 12269 of 2007 for the subdivision of the subject site, and as previously modified by this Court in proceedings number 322910 of 2017, 76402 of 2018 and 152087 of 2019, is further modified subject to the conditions included at Annexure “A”.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (66.6 KB, pdf)

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Decision last updated: 02 April 2020