Smith v Camden Council

[2023] NSWLEC 1363

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smith v Camden Council [2023] NSWLEC 1363

Hearing dates:

Conciliation conference on 7 July 2023

Date of orders:

13 July 2023

Decision date:

13 July 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 13 April 2023, file reference JESI:PF 2023/55/2, relating to works at Lot 218 DP808605, otherwise known as 5 Upfield Lane, Catherine Field NSW, issued by the Respondent to the Applicant is modified in accordance with the development control order at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.18

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Dean Smith (First Applicant)
Leanne Smith (Second Applicant)
Camden Council (Respondent)

Representation:

Counsel:
B Jackson (Applicants)
F Zoppo (Solicitor) (Respondent)

Solicitors:
Foundation Law Group (Applicants)
Sparke Helmore (Respondent)

File Number(s):

2023/147083

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Dean and Leanne Smith (the Applicants) have appealed the issue by Camden Council (the Respondent) of a Development Control Order, dated 13 April 2023 with file reference JESI:PF 2023/55/2 (the Order), relating to works at Lot 218 DP 808605, otherwise known as 5 Upfield Lane, Catherine Field, NSW (the Subject Site).

2. The appeal is made under s 8.18(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 8.18(4) of the EP&A Act.

3. On 7 July 2023, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement to resolve the appeal through the Court upholding the appeal and modifying the Order.

4. 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.

5. The terms of the Parties’ agreement are consistent with the powers of the Court on appeal in relation to development control orders under s 8.18(4) of the EP&A Act. There are no other jurisdictional considerations in relation to the Court’s powers to make orders consistent with the agreement of the Parties.

6. Having considered the advice of the Parties, provided above at [5], 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.

7. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

8. 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.

Orders

9. The Court orders that:

1. The appeal is upheld.

2. Pursuant to section 8.18(4)(b) of the Environmental Planning and Assessment Act 1979, the Development Control Order dated 13 April 2023, file reference JESI:PF 2023/55/2, relating to works at Lot 218 DP808605, otherwise known as 5 Upfield Lane, Catherine Field NSW, issued by the Respondent to the Applicant is modified in accordance with the development control order at Annexure A.

M Chilcott

Commissioner of the Court

(Annexure A) (208524, pdf)

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Decision last updated: 13 July 2023