Simpson v Northern Beaches Council

[2019] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:	Simpson v Northern Beaches Council [2019] NSWLEC 1076
Hearing dates:	Conciliation conference on 22 January 2019 and 14 February 2019
Date of orders:	25 February 2019
Decision date:	25 February 2019
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	See orders at [9] below
Catchwords:	APPEAL against refusal of Subdivision Certificate: conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Gregory Lane Simpson (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: C Rose, Swaab (Applicant) K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/198407
Publication restriction:	No

Judgment

Background

1. These Class 1 proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.16(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Northern Beaches Council's (Council) refusal of a Subdivision Certificate Application SC2017/0005 (SA).

2. The subdivision was approved by the Land and Environment Court on 29 June 2014 in proceedings no. 2014/10642 in respect of DA2013/0655. The approved subdivision comprised the subdivision of an existing 6,671m² lot into 4 residential allotments.

Jurisdiction

3. Section 6.15 of the EPA Act sets out the requirements that must be satisfied in order for a subdivision certificate to be issued. Relevantly these are that:

1. a development consent is in force with respect to the subdivision;

2. all the conditions of the development consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision have been complied with, and

3. the work has been completed.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 January and 14 February 2019. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the issue of the subdivision certificate.

6. Under s 34(3) of the 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. The parties’ decision involves the Court exercising the function under s 8.16(1)(a) of the EPA Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be those referred to in [3] above. The parties explained how the jurisdictional prerequisites have been satisfied namely by the satisfaction of the Council by inspection of the land and of the existence and content of the documents referred to in s 6.15 of the EPA Act.

7. 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. In this respect, the Court was satisfied by adopting the reasons given by the parties.

8. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. The Court orders:

1. Leave is granted to the Applicant to rely on the following amended plans:

Plan of Title	Author/Drawn By	Plan Reference	Dated
Plan of Subdivision of Lot 7 in DP 1182494	Peter Robert Warwick	Surveyor’s Ref 16696-C4A	12 December 2018

2. The appeal is upheld.

3. Subdivision Certificate Application No. SC 2017 / 0005, relating to the Torrens Title subdivision of an existing Lot at 75 Childs Circuit, Belrose (legally described as Lot 7 in DP 1182494) into four (4) residential lots approved in DA 2013/0655 granted by the Land and Environment Court of NSW in Proceedings No 2014/10642, is approved.

………………………………

J Maston

Acting Commissioner of the Court

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Decision last updated: 25 February 2019