Walker v Queanbeyan-Palerang Regional Council

[2020] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation:	Walker v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1079
Hearing dates:	Conciliation conference on 9 January 2020
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See orders at [7] below
Catchwords:	APPEAL – development control order – 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:	Richard Walker (First Applicant) Wallace Street Pty Ltd (Second Applicant) Scapefall Pty Limited (Third Applicant) Queanbeyan-Palerang Regional Council (Respondent)
Representation:	Counsel: S Berveling (Applicants) A Bradbury (Solicitor) (Respondent)   Solicitors: Chamberlains (Applicants) Bradley Allen Love (Respondent)
File Number(s):	2019/294723
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a development control order issued by Queanbeyan-Palerang Regional Council on 6 September 2019 requiring compliance with condition 3 of development consent for a boundary adjustment (DA.2014.208) concerning Lot 6 DP 519457 and Lot 2 DP 713618. Condition 3 requires an amendment to the existing s 88B instrument “providing right of carriageway to Lot 1 DP 829063” to reflect new plan details. The order was issued pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 (“EPA Act”), which allows a development control order to be given in accordance with the table to Part 1 of Schedule 5 to the EPA Act. Item 11 in the table allows a development control order to be issued as a Compliance Order to “comply with a planning approval for the carrying out of works”. Mr Walker, together with Wallace Street Pty Ltd and Scapefall Pty Ltd, appeals against the order pursuant to s 8.18 of the EPA Act.

2. Section 8.18(4) of the EPA Act sets out the powers of the Court on an appeal against an order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order, or

(b) modify the development control order, or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

3. 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 9 January 2020. I presided over the conciliation conference.

4. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement is that the order is modified so that its wording requires the registration of a covenant on the title of Lot 2 DP 1208847 providing right of access to the current occupiers of Lot 1 DP 829063. This provides access to Lot 1 DP 829063 for the current occupiers of that property in circumstances where there was not an existing right of carriageway that benefitted Lot 1 DP 829063 on an existing instrument.

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. The parties’ decision involves the Court exercising the function under s 8.18(4)(b) of the EPA Act to modify the order.

6. 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. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment on the merits of the issues that were originally in dispute between the parties.

7. The Court orders that:

1. The appeal is upheld.

2. Development Control Order entitled Compliance Order having references ON2019.001 and NOPO 2019/1012 issued by the Respondent dated 6 September 2019 in relation to 121 Wallace Street Braidwood NSW, is substituted by the following:

Instead of complying with condition 3 of DA.2014.208, register a Covenant on the Title of Lot 2 DP 1208847 by 30 April 2020 as follows:

The Owner of Lot 2 DP 1208847, its successors and assigns, grants a Right of Access to the current occupiers of Lot 1 DP 829063 and every person authorised by those occupiers, to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said Lot 1 DP 829063 or any such part thereof along that part of Lot 2 DP 1208847 shown in pink on the attached diagram being 3.605m wide (referred to hereinafter as “the access path”), with a key to any gate along the access path, together with a right to park along the easternmost 11 metres of the access path and a right to use for vehicle circulation purposes such other parts alongside the access path able to be utilized from time to time for that purpose and the totality of which the owner of Lot 2 DP 1208847 need not keep clear, for the period ending on the later of the following:

1. Transfer of Lot 1 DP 829063 from its current owner Eileen Kidd; or

2. Cessation of occupation of Lot 1 DP 829063 by both the current occupiers Steve Kidd and Eileen (Sam) Kidd.

………………………

J Gray

Commissioner of the Court

Attachment (1.13 MB, pdf)

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Decision last updated: 26 February 2020