Sid Merhi v The Hills Shire Council

[2017] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sid Merhi v The Hills Shire Council [2017] NSWLEC 1191
Hearing dates:	Conciliation 10 April 2017
Date of orders:	10 April 2017
Decision date:	10 April 2017
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:	Sid Merhi (Applicant) The Hills Shire Council (Respondent)
Representation:	J Hajje (Applicant) C Winn (Respondent)
File Number(s):	2016/377007
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 Respondent agrees to accept a bond from the Applicant, in the amount of $59,411.00 for completion of the Vegetation Management Plan works, over a five year period. The Respondent agrees to reduce the bond amount payable by the Applicant to $18,700.00 if the Applicant elects to carry out the year one works prior to the release by the Respondent of a subdivision certificate.

2. The Respondent agrees to not press the retention of tree 1 (Eucalyptus saligna) or tree 3 (Eucalyptus saligna) which are described in Condition 18 of the Notice of Determination of a Development Application 238/2017/ZB.

3. The Applicant agrees to not press the determination of Clause 6.3 of the North Kellyville Growth Centres SEPP

4. The Respondent agrees that raingardens and rainwater re-use tanks are not a requirement of the Development Application or Construction Certificate associated with the DA of the subdivision, at subdivision stage, which was required by Condition 22H of the Notice of Determination of a Development Application 238/2017/ZB. However the Applicant acknowledges and agrees that raingardens and rainwater re-use tanks are required during any house construction stage.

5. The Respondent agrees that the undergrounding of any existing overhead services that are outside the property boundaries is not required, as was required by Conditions 31, 60 and 61 of the Notice of Determination of a Development Application 238/2017/ZB.

…………….

Michael Chilcott

Commissioner of the Court