Pacific Rim Accommodation Group Pty Ltd v Mid-Coast Council

[2018] NSWLEC 1578

Land and Environment Court

New South Wales

Medium Neutral Citation:	Pacific Rim Accommodation Group Pty Ltd v Mid-Coast Council [2018] NSWLEC 1578
Hearing dates:	Conciliation conference on 25 October 2018
Date of orders:	06 November 2018
Decision date:	06 November 2018
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	See [8] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning & Assessment 1979 Environmental Planning & Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Category:	Principal judgment
Parties:	Pacific Rim Accommodation Group Pty Ltd (First Applicant) Tattersall Lander Pty Ltd (Second Applicant) Mid-Coast Council (Respondent)
Representation:	Solicitors: G Long, Long Legal Pty Ltd (Applicants) T Pickup, Local Government Legal (Respondent)
File Number(s):	2018/105619
Publication restriction:	No

Judgment

COMMISSIONER:

1. This Class 1 appeal concerns a revised Development Control Order issued by Mid-Coast Council on 26 April 2018 under Division 9.3 and Item 2 of Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Order required the First Applicant (as land owner) and the Second Applicant, Tattersall Lander Pty Ltd (as persons causing the work) to cease carrying out the following work on land described as Lot 402 in DP 773088, No 223 The Lakes Way, Forster and known as “Follyfoot Farm” (the land):-

1. any physical activity involving earthworks, excavation, road construction, bridge construction and tree removal, other than work specifically required by New South Wales EPA Notice No 1563479 dated 6 April 2018;

2. the receiving, stockpiling or burying of waste or waste classified material;

3. the winning of earth as fill material from parts of the Land;

4. any physical activity involved in construction or demolition which is not otherwise approved by Council or deemed Exempt Development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

3. The appeal against the Order is made pursuant to s 8.18 of the EPA Act.

4. Following 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 would be acceptable to the parties. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test mandated by s 34(3) of the Court Act.

5. Section 34(3)(a) of the Court Act requires me to “dispose of the proceedings in accordance with the decision”.

6. The Court Act also requires 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.

7. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Nor am I required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The appeal is upheld.

2. The Development Control Order dated 26 April 2018 issued by the Respondent is revoked upon the surrender of Development Consent No. DA 198/2012 in the form required by clause 97 of the Environmental Planning & Assessment Regulation 2000.

3. Prior to the surrender of Development Consent No. DA 198/2012, the Applicants are not to carry out any physical activity involving earthworks, excavation, road construction or tree removal, other than works required to comply with any NSW EPA clean up notice.

……………………….

S Dixon

Senior Commissioner of the Court