Lema v Wingecarribee Shire Council

[2018] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lema v Wingecarribee Shire Council [2018] NSWLEC 1191
Hearing dates:	Conciliation conference on 12 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 1
Before:	Walsh 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:	Peter Lema (First Applicant) Tracey Denise Mitchell (Second Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Mr Christopher Shaw, solicitor (Respondent) Solicitors: B Bilinsky & Co (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/307994
Publication restriction:	No

Judgment

1. 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”.

2. 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.

3. 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.

4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The clause 4.6 objection to the minimum lot size in clause 4.1 of the Wingecarribee Local Environmental Plan 2010 contained in the Statement of Environmental Effects prepared by LandTeam dated 10 November 2016 is upheld.

2. The appeal is upheld.

3. Development Application No. 16/1322 for the subdivision of lot 61 in deposited plan 882829 into 3 lots at 7 Huxley Street, Mittagong is approved subject to the conditions contained in Annexure “A”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (167 KB, pdf)