Swankin Pty Ltd v The Hills Shire Council

[2018] NSWLEC 1587

Land and Environment Court

New South Wales

Medium Neutral Citation:	Swankin Pty Ltd v The Hills Shire Council [2018] NSWLEC 1587
Hearing dates:	Conciliation conference on 9 November 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [9] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 The Hills Local Environmental Plan 2012
Category:	Principal judgment
Parties:	Swankin Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: F Bergland (Applicant)   Solicitors: Webster Solicitors (Applicant) M Hanna, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/146736
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a Development Control Order (10) (the order) issued by The Hills Shire Council under Div 9.3 and Item 10 of Pt 1 of Sch 5 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979) for the clearing of vegetation and tree removal, and required subsequent regeneration. The order relates to unauthorised works at Lot 42 DP 1067382, also known as 62 Spur Place, Glenorie, NSW (the site).

2. This Class 1 appeal is made under s 8.18 of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979). The Court is required to make a determination pursuant to s 8.18(4) of the EP&A Act 1979.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 9 November 2018. I have presided over the conciliation conference. There were no objections raised by third parties.

4. 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 is to uphold the appeal, in addition to modify the order and compliance requirements, pursuant to Pt 10(22)(1) of Pt 1 of Sch 5 of the EP&A Act 1979. Specifically, and with relevance to the reasons given for the order, the order is amended to relate to Item 10 of Pt 1 of Sch 5 of the EP&A Act 1979.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties’ decision, if it is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ decision involves the Court exercising its function under s 8.18(4) of the EPA Act 1979 to modify the (development control) order (10). The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, as consistent with The Hills Local Environmental Plan 2012. The parties agreed that the site is zoned RU2 and that clearing occurred within land identified as ‘Biodiversity’ land, according to the Terrestrial Biodiversity Map, under clause 7.4 of the THLEP 2012. Order 10 requires cessation of clearing and activation of natural regeneration in the area shown in red in the site plan shown in Figure 1 of Annexure A.

7. I am therefore 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 1979.

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 1979 to dispose of the proceedings in accordance with the parties’ decision.

9. The Court orders:

1. Leave is granted to amend the Order Number and the action in response (‘To do what’), as shown in Annexure “A”.

2. The appeal is upheld.

3. Order 10, issued on 9 November 2018 to Swankin Pty Ltd and John Bourke (Director) at Lot 42 DP 1067382, also known as 62 Spur Place, Glenorie, is annexed hereto and marked “A”.

4. No order is made as to costs.

……………………..

S Bish

Commissioner of the Court

Annexure A (307 KB, pdf)

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Decision last updated: 13 November 2018