Maxson Developments Pty Ltd v Wingecarribee Shire Council

[2022] NSWLEC 1472

Land and Environment Court

New South Wales

Medium Neutral Citation:

Maxson Developments Pty Ltd v Wingecarribee Shire Council [2022] NSWLEC 1472

Hearing dates:

Conciliation conference on 26 August 2022

Date of orders:

8 September 2022

Decision date:

08 September 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld;

(2) Development Consent No. 20/1123 for land at 1 Willis Street, Bundanoon is modified in the terms in Annexure ‘A’ to this judgment;

(3) Development Consent No. 20/1123.01 as modified by the Court is provided at Annexure ‘B’ to this judgment.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, cl 105

Land and Environment Court Act 1979, s 34

Texts Cited:

Wingecarribee Shire Council Community Engagement Strategy (incorporating Community Participation Plan) 2021

Category:

Principal judgment

Parties:

Maxson Developments Pty Ltd (Applicant)
Wingecarribee Shire Council (Respondent)

Representation:

Counsel:
C Gough (Solicitor) (Applicant)
B Dyer (Solicitor) (Respondent)

Solicitors:
Storey and Gough Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/135451

Publication restriction:

No

Judgment

1. COMMISSIONER: Maxson Developments Pty Ltd (the Applicant) has appealed the refusal by Wingecarribee Shire Council (the Respondent) of its modification application, seeking amendment to a consent granted by the Respondent in relation to development application DA 20/1123 (the Proposed Modification) at 1 Willis Street, Bundanoon (the Subject Site).

2. The Proposed Modification seeks to modify certain conditions within the original grant of consent.

3. The appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of ss 4.55(1A) of the EP&A Act.

4. Pursuant to the provisions of cl 105 of the Environmental Planning and Assessment Regulation 2021 the Proposed Modification was not required to be notified under Council’s Community Engagement Strategy, which incorporates its Community Participation Plan.

5. Under s 34(3) of the Land and Environment Court Act 1979 (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.

6. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. consistent with the provisions of s 4.55(1A) of the EP&A Act, I am satisfied that:

1. the Applicant’s proposed modifications to Condition [2] and Condition [54] of the consent is of minimal environmental impact, in that the proposed intersection upgrade amendment primarily relates to the design of the intersection so as to limit it to “left in/left out” traffic;

2. the development for which consent was originally granted was for the demolition of buildings and works, subdivision of land and carrying out of works to create four lots at 1 Willis Street, Bundanoon, and:

1. a quantitative and qualitative comparison of the development as originally approved and the modification subject of this appeal has confirmed that the proposed development as modified is essentially or materially the same, or has the same essence as the development originally approved; and

2. although the Proposed Modification to Condition [1] and Condition [54] alters the approved development by changing the requirement for the intersection treatment to the intersection of Willis Street and Penrose Road to be a “left in/left out” intersection as opposed to a “BAR/BAL” intersection, the works are substantially the same as the development as approved in the Consent; and

3. on the basis of the above, I am satisfied that the development as amended is substantially the same as the development for which that consent was originally granted;

2. the Parties have confirmed, and I am satisfied, that the relevant considerations pursuant to the provisions of s 4.15(1) of the EP&A Act have been taken into account in relation to the Proposed Modification and the Parties agreement that the application should be approved;

7. Having considered the advice of the Parties, provided above at [6], I agree that:

1. the Applicant’s Modification Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(1A) of the EP&A Act have been so satisfied.

8. Further, 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.

9. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

10. 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.

Orders

11. The Court orders that:

1. the appeal is upheld;

2. Development Consent No. 20/1123 for land at 1 Willis Street, Bundanoon is modified in the terms in Annexure ‘A’ to this judgment;

3. Development Consent No. 20/1123.01 as modified by the Court is provided at Annexure ‘B’ to this judgment.

…………………………..

M Chilcott

Commissioner of the Court

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Decision last updated: 08 September 2022