Willow Properties Pty Ltd and Paloma Blanca Pastoral Pty Ltd v Wingecarribee Shire Council

[2018] NSWLEC 1535

Land and Environment Court

New South Wales

Medium Neutral Citation:	Willow Properties Pty Ltd and Paloma Blanca Pastoral Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1535
Hearing dates:	Conciliation conference on 27 October 2017; 5 March 2018; 25 September 2018
Date of orders:	25 September 2018
Decision date:	25 September 2018
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See [4] 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
Category:	Principal judgment
Parties:	Willow Properties Pty Ltd (First Applicant) Paloma Blanca Pastoral Pty Ltd (Second Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsels: M Staunton (Applicants) J Smith (Respondent) Solicitors: B Bilinsky & Co (Applicants) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/194138
Publication restriction:	No

Judgment

1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. 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.

3. 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.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to rely upon the amended plans in Annexure "A";

2. The Applicant pay the Respondent's costs thrown away as a result of the amended plans, in the agreed amount of $2,500 within 14 days from the date of these orders, pursuant to s 8.15(3) (cf previous s.97B) of the Environmental Planning and Assessment Act 1979 (NSW);

3. The appeal is upheld;

4. Development consent is granted to DA 17/0011 for a new dwelling house at Lot 38 DP 22999 Ascot Road Bowral including tree removal together with Asset Protection Zone on Lot 16, Lot 17, Lot 18 DP 21563 and Lot A DP 393343 in accordance with the Conditions in Annexure "B".

The Court notes that:

A.   The Applicant will pay the Respondent's costs (as agreed in Order 1A of the Court's orders dated 13 March 2018) of the vacation of the hearing dated in the agreed sum of $2,000 within 14 days from the date of these orders.

……………………….

S Bish

Commissioner of the Court

Annexure A (Lot 38) (1.38 MB, pdf)

Annexure B (Lot 38) (142 KB, pdf)

Attachment A - BioBanking Credit Report (109 KB, pdf)