Retail Fuel Developments Pty Ltd v Ballina Shire Council

[2017] NSWLEC 1065

Land and Environment Court

New South Wales

Medium Neutral Citation:	Retail Fuel Developments Pty Ltd v Ballina Shire Council [2017] NSWLEC 1065
Hearing dates:	Conciliation conference on 13 December 2016, 16 January & 2 February 2017
Date of orders:	13 February 2017
Decision date:	13 February 2017
Jurisdiction:	Class 1
Before:	Morris 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:	Retail Fuel Developments Pty Ltd (Applicant) Ballina Shire Council (Respondent)
Representation:	Solicitor: Mr C Gough, Storey & Gough Lawyers (Applicant) Ms C Huegill, Property Law Specialist(Respondent)
File Number(s):	2016/268732
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 Appeal is upheld.

2. The Applicant is granted leave to rely on an amended application by substituting the following plans as the plans relied upon for the purpose of the development application:

1. Drawing No. TP.03 Revision L dated 1 February 2017 by TRG;

2. Drawing No. TP.04 Revision A dated 12 January 2016 by TRG;

3. Drawing No. TP.05 Revision C dated 17 June 2016 by TRG;

4. Drawing No. TP.06 Revision B dated 17 June 2016 by TRG;

5. Drawing No. 1529-02 Issue C dated February 2017 by Jackie Amos;

6. Drawing No.C01.(P2) dated 16 December 2015 by de Groot Benson;

7. Drawing No.C04 dated 4 May 2016 by de Groot Benson;

8. Drawing No.C05.(DA1) dated 14 December 2016 by de Groot Benson

3. The application for approval of DA 2016/25 (being for demolition of existing buildings and the construction of a service station an ancillary kiosk at 323 River Street, Ballina) is approved subject to the conditions set out in Annexure “A”.

……………………….

Commissioner Morris

268732.16 Morris (C) (283 KB, pdf)