Whiz Kids Early Learning Centre Pty Ltd v The Hills Shire Council

[2019] NSWLEC 1582

Land and Environment Court

New South Wales

Medium Neutral Citation:	Whiz Kids Early Learning Centre Pty Ltd v The Hills Shire Council [2019] NSWLEC 1582
Hearing dates:	Conciliation conference on 12 November 2019
Date of orders:	29 November 2019
Decision date:	29 November 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1) The Appeal is upheld. (2) The development control Order No 11 the subject of the Appeal is substituted by order No 1 in the terms of attachment ‘A’ to this order. (3) Each party pay their own costs of the proceedings.
Catchwords:	DEVELOPMENT APPLICATION – 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:	Whiz Kids Early Learning Centre Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: T O’Connor (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent)   Solicitors: Houston Dearn O’Connor (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/258962
Publication restriction:	No

Judgment

1. COMMISSIONER: Whiz Kidz Early Learning Centre Pty Ltd (the Applicant) has appealed the issue of an order by The Hills Shire Council (the Respondent) in relation to the management of noise arising from the operation of its child care centre at 49 Jasper Road, Baulkham Hills (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. The Court arranged for the matter to be addressed under the provisions of s34of the Land and Environment Court Act 1979 (LEC Act), which requires that the Court must arrange a conciliation conference between the parties and their representatives with or without their consent.

4. The matter commenced in conciliation on 12 November 2019, and I presided over that conciliation conference.

5. 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.

6. This decision involved the Court upholding the appeal and substituting the Order that was the subject of the appeal with a new Order, which reflected the agreement of the Parties.

7. 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.

8. The Parties’ decision involves the Court exercising the function under s 8.18(4)(c) of the EPA Act to substitute the Order that is the subject of the appeal with another Order that is an Order that the relevant enforcement authority who gave the original Order could have given, and I am satisfied that the provisions of s 8.18(4)(c) of the EPA Act have been fulfilled.

9. There are no further jurisdictional prerequisites that must be satisfied before this function can be exercised.

10. I am further 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.

11. 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.

12. The Court orders:

1. The Appeal is upheld.

2. The development control Order No 11 the subject of the Appeal is substituted by order No 1 in the terms of attachment ‘A’ to this order.

3. Each party pay their own costs of the proceedings.

…………………………….

M Chilcott,

Commissioner of the Court

Attachment A (222 KB)

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Decision last updated: 29 November 2019