RG Capital (Australia) Pty Limited v Wingecarribee Shire Council

[2018] NSWLEC 1557

Land and Environment Court

New South Wales

Medium Neutral Citation:	RG Capital (Australia) Pty Limited v Wingecarribee Shire Council [2018] NSWLEC 1557
Hearing dates:	Conciliation conference on 19 October 2018
Date of orders:	19 October 2018
Decision date:	19 October 2018
Jurisdiction:	Class 1
Before:	Chilcott 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:	RG Capital (Australia) Pty Limited (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Solicitors: M Mazzone, Diamond Conway (Applicant) R Cunningham, Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/382951
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 s 34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. Consent is granted to modify development consent LUA11/0724.05 by modifying consent condition 46(c)(ii)(a) as set out in the conditions of consent annexed hereto and marked “A”.

3. The Applicant is granted leave to modify development consent LUA11/0724.05 to include the following additional plans to be relied upon for the purpose of amending condition 46(c)(ii)(a):

Drawing(s)	Reference/ Version	Prepared By	Dated
Plan, Long Section and Cross Sections of B.A.R. Drawing No. 17958.03	Issue D	LandTeam	19 July 2018
Option 2 Erith St Half Road Construction & BAR Drawing No. 137958	Issue E	LandTeam	14 September 2018
Pavement Details	Dominic Lucas of Wingecarribee Shire Council	20 September 2018

4. Construction of the intersection at Erith Street, Bundanoon is to be completed within 12 months of the date of this agreement.

5. Council agrees:

1. to contribute towards the cost of reconstruction of the southbound lane of the road shoulder of the intersection being from the centreline of the road to the edge of the existing bitumen for the extent shown on Drawing No 137958 OPT 2, in the amount of $65,960 (exclusive of GST); and

2. to pay one half of the cost of the removal and replacement of unacceptable subgrade (as per the conditions of consent) in the southbound lane, if any.

6. Within 30 days of an independent engineer appointed by the parties providing a certificate undertaking that all BAR works have been satisfactorily completed Council will pay to RG Capital the cost of works as agreed above.

7. Any party wishing to apply for costs in relation to these proceedings is to make application to the Court within 14 days of these orders.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (470 KB, pdf)