Waite v Port Macquarie-Hastings Council

[2020] NSWLEC 1303

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waite v Port Macquarie-Hastings Council [2020] NSWLEC 1303

Hearing dates:

Conciliation conference on 3 July 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) By consent, pursuant to s 64(1)(b) of the Civil Procedure Act 2005, the Applicant is granted leave to amend the Class 1 application such that the proceedings are commenced under s 8.9 of the Environmental Planning and Assessment Act 1979 in relation to the Applicants’ dissatisfaction with the determination of the Respondent to approve Modification Application No. DA 010.2017.1042.001 (‘Application’).

(2) The appeal is upheld.

(3) The Application for the modification of Development Consent No. 2017/1042 (‘Consent’), in relation to 2325 Oxley Highway, Wauchope, is approved such that the Consent is modified by deleting conditions E3 and E4.

(4) As consequence of 3 above, the Consent is now subject to the modified conditions of consent as set out at Annexure A.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – deletion of conditions of consent –agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Water Management Act 2000

Category:

Principal judgment

Parties:

David Peter Waite (First Applicant)
Alison Michelle Waite (Second Applicant)
Port Macquarie-Hastings Council (Respondent)

Representation:

Counsel:
D Williams (Solicitor) (Applicants)
M Harker (Solicitor) (Respondent)

Solicitors:
Whitehead Cooper Williams (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2020/126573

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicants, David and Alison Waite, appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) due to their dissatisfaction with the determination of their modification by Port Macquarie-Hastings Council. The modification application seeks consent for the deletion of two conditions, firstly relating to development contributions levied under s 7.11 of the EPA Act and secondly contributions levied under s 306 of the Water Management Act 2000. The development consent itself, DA/2017/1042.3, granted consent to additional use of Lot 114 2325 Oxley Highway, Wauchope as a primitive campground for 59 designated camp sites and as an extension to the existing ‘Timbertown’ development.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 3 July 2020. Through the conciliation process, the parties have agreed to uphold the appeal and to grant the requested modification to the development consent, pursuant to s 4.55 of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The modification application was lodged with the consent of the owner of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. As required by s 4.55(2) of the EPA Act, I am satisfied that: firstly the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and secondly the modification sought does not alter conditions imposed as a result of general terms of approval and thirdly that the modification application lodged with the Respondent was placed on notification and submissions received have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, 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.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. By consent, pursuant to s 64(1)(b) of the Civil Procedure Act 2005, the Applicant is granted leave to amend the Class 1 application such that the proceedings are commenced under s 8.9 of the Environmental Planning and Assessment Act 1979 in relation to the Applicants’ dissatisfaction with the determination of the Respondent to approve Modification Application No. DA 010.2017.1042.001 (‘Application’).

2. The appeal is upheld.

3. The Application for the modification of Development Consent No. 2017/1042 (‘Consent’), in relation to 2325 Oxley Highway, Wauchope, is approved such that the Consent is modified by deleting conditions E3 and E4.

4. As consequence of 3 above, the Consent is now subject to the modified conditions of consent as set out at Annexure A.

………………………………..

D M Dickson

Commissioner of the Court

Annexure A (140141, pdf)

**********

Decision last updated: 15 July 2020