Veronesi v Ballina Shire Council

[2020] NSWLEC 1325

Land and Environment Court

New South Wales

Medium Neutral Citation:

Veronesi v Ballina Shire Council [2020] NSWLEC 1325

Hearing dates:

Conciliation conference on 3 July 2020; Documents filed 17 July 2020

Date of orders:

24 July 2020

Decision date:

24 July 2020

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court orders that:

(1)     The appeal is upheld.

(2) Development consent is granted to Development application no. DA 2019/170 for the subdivision of land at Lot 1 DP 736181 known as 987 Wardell Road and Lot 2 DP 236129 known as 937 Wardell Road, Meerchaum Vale, to create one x 76.3 ha and one x 6.4 ha allotment from the existing two lots subject to the conditions of consent set out in Annexure A hereto (which conditions include the draft instruments pursuant s 88B Conveyancing Act 1919 at Annexure B hereto being restrictions as to use of land referred to in conditions 11, 12 and 13).

Catchwords:

SUBDIVISION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Ballina Local Environmental Plan 2012

Conveyancing Act 1919

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

Marco Patrizio Veronesi (First Applicant)
Melissa Jane Veronesi (Second Applicant)
Ballina Shire Council (Respondent)

Representation:

Counsel:
J Burrell (Solicitor) (Applicants)
C Huegill (Solicitor) (Respondent)

Solicitors:
Burrell Solicitors ILP (Applicant)
Parker & Kissane (Respondent)

File Number(s):

2020/28305

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 2019/170) for the subdivision of land at Lot 1 DP 736181 known as 987 Wardell Road and Lot 2 DP 236129 known as 937 Wardell Road, Meerchaum Vale (the site).

2. The proposed subdivision is a two lot boundary adjustment subdivision to create one x 76.3 ha and one x 6.4 ha allotment from the existing two lots.

3. On 3 July 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).

4. At the conciliation conference, the parties reached agreement in principle as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to uphold the appeal and grant development consent to the development application subject to conditions.

5. An agreement pursuant to s 34 LEC Act was filed by the parties on 17 July 2020 giving effect to the agreement in principle.

6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

7. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have stated and I agree on the basis of the material provided that the relevant jurisdictional prerequisites that are satisfied so this function can be exercised are:

1. The subdivision is permissible pursuant to cl 4.2B Ballina Local Environmental Plan 2012 (BLEP 2012);

2. the subdivision will not result in the creation of an additional lot or the opportunity for additional dwelling entitlements, or both, on any of the lots having regard to the conditions which are to be imposed; and

3. the subdivision will not adversely impact on the long-term agricultural production potential or environmental characteristics of the lots and the surrounding locality.

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 parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

10. The Court orders:

1. The appeal is upheld.

2. Development consent is granted to Development application no. DA 2019/170 for the subdivision of land at Lot 1 DP 736181 known as 987 Wardell Road and Lot 2 DP 236129 known as 937 Wardell Road, Meerchaum Vale, to create one x 76.3 ha and one x 6.4 ha allotment from the existing two lots subject to the conditions of consent set out in Annexure A hereto (which conditions include the draft instruments pursuant s 88B Conveyancing Act 1919 at Annexure B hereto being restrictions as to use of land referred to in conditions 11, 12 and 13).

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (351516, pdf)

Annexure B (121435, pdf)

Subdivision Plan (114812, pdf)

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Decision last updated: 24 July 2020