Wensco Pty Limited v Central Coast Council

[2019] NSWLEC 1044

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wensco Pty Limited v Central Coast Council [2019] NSWLEC 1044
Hearing dates:	Conciliation conference on 1 February 2019
Date of orders:	01 February 2019
Decision date:	01 February 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [10] 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 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 71—Coastal Protection Wyong Local Environmental Plan
Category:	Principal judgment
Parties:	Wensco Pty Limited (First Applicant) Nelmes Investment Holdings Pty Limited (Second Applicant) Central Coast Council (Respondent)
Representation:	Solicitors: A McKelvey, Sparke Helmore Lawyers (Applicants) M Ball, Central Coast Council (Respondent)
File Number(s):	2018/275039
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of development application DA/1444/2017 (DA) for the construction of an addition to an existing office building and associated parking, at 5 Pioneer Avenue Tuggerah being Lot 303 DP 10074368.

2. 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 1 February 2019. I presided over the conciliation conference.

3. After 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 involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to include:

1. under cl 2.3(2) of Wyong Local Environmental Plan (LEP), the need to “have regard to” the objectives of the relevant zone – I have had regard to the B7 Business Park zone of the LEP

2. under cl 8(a) and 2(1)(k) of State Environmental Planning Policy No 71—Coastal Protection (which although now repealed is indicated as applying to the DA under savings provisions), the need to consider whether “the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area” – I note the changes to the original proposal which are suggested to address this issue

3. under cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, the need to consider whether the land is contaminated – I have so considered, and accept Council’s view that the land is not contaminated.

5. The parties explained that all other jurisdictional matters are satisfied and I accept this view.

6. 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 under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

9. 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.

10. The Court orders are:

1. Leave is granted to the Applicants to rely upon the amended plans listed in Condition 1 at Annexure “A”.

2. The Appeal is upheld.

3. Development Application DA No/1444/2017 for alterations and additions to an existing office building at 5 Pioneer Avenue Tuggerah, Lot 303 DP 1007368, is approved subject to the conditions set out in Annexure “A”.

………………………..

P Walsh

Commissioner of the Court

Annexure A (232 KB, pdf)

Plans (578 KB, pdf)

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Decision last updated: 12 February 2019