Wiser Capital Pty Ltd v The Hills Shire Council

[2018] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wiser Capital Pty Ltd v The Hills Shire Council [2018] NSWLEC 1416
Hearing dates:	Conciliation conference on 19 July 2018
Date of orders:	09 August 2018
Decision date:	09 August 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See [4] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Wiser Capital Pty Ltd (Applicant) The Hills Shire Council (Respondent)
Representation:	Counsel: Dr S Berveling (Applicant) Solicitors: P Hudson, Marsdens Law Group (Respondent) Apex Lawyers Pty Ltd (Applicant)
File Number(s):	2018/32124
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 s34(3) of the Land and Environment Court Act 1979 are:

1. The appeal is upheld.

2. The Applicant is granted leave to amend Development Application No. 1951/2017/JP and to rely upon the following amended plans and documents:

DRAWING NO.	DESCRIPTION	ISSUE	DATE
DA02	Location Plan	C	March 2018
DA03	Site Analysis Plan	C	March 2018
DA04	Ground Floor Layout & Site Statistics	D	March 2018
DA05	Roof Plan & Landscape	C	March 2018
DA06	Lower Ground Car Park Plan	G	08/06/2018
DA29	Townhouse Type A9	C	March 2018
DA30	Townhouse Type A10	C	March 2018
DA18	Street Elevation 2	C	March 2018
DA19	Street Elevation 3	C	March 2018
000	Landscape Site Plan	H	04/06/2018
101	Landscape Plan	G	04/06/2018
102	Landscape Plan	G	04/06/2018
103	Landscape Plan	G	04/06/2018
104	Landscape Plan	H	04/06/2018
105	Landscape Plan	G	04/06/2018
106	Landscape Plan	G	04/06/2018
107	Landscape Plan	C	04/06/2018
108	Landscape Plan	B	04/06/2018
109	Landscape Plan	B	04/06/2018
110	Landscape Plan	B	04/06/2018
501	Landscape Details & Plant Schedule	F	28/05/2018
502	Landscape Details	B	29/03/2018
1266-DA-B Sheet 1 of 13	Locality Sketch, General Notes, Index	B	March 2018
1266-DA-B Sheet 2 of 15	Site Plan	B	8/03/2018
1266-DA-B Sheet 3 of 13	Cosmos Way – Road No.1 Long. Section, Cross Sections – Ch.15.435 To Ch.60 & Typical	B	8/03/2018
1266-DA-B Sheet 4 of 13	Cosmos Way – Road No.1 Cross Sections – Ch.75 To Ch.307.931	B	8/03/2018
1266-DA-B Sheet 5 of 13	Mason Road – Road No.2 Long. Sections, Cross Sections – Ch.00 To Ch.60 & Typical	B	8/03/2018
1266-DA-B Sheet 6 of 13	Mason Road – Road No.2 Cross Sections – Ch.69.954 To Ch.150	B	8/03/2018
1266-DA-B Sheet 7 of 13	Taurus Way – Road No.3 Long. Section, Cross-Sections & Typical	B	8/03/2018
1266-DA-B Sheet 8 of 13	Aries Way – Road No.4 Long. Sections, Cross-Sections, & Typical	B	8/03/2018
1266-DA-B Sheet 9 of 13	Aurora Street – Road No.5 Long. Sections, Cross-Sections, & Typical	B	8/03/2018
1266-DA-B Sheet 10 of 13	Demolition Plan	B	8/03/2018
1266-DA-B Sheet 11 of 13	Tree Management Plan	B	8/03/2018
1266-DA-B Sheet 12 of 13	Sediment & Erosion Control Plan	B	8/03/2018
1266-DA-B Sheet 13 of 13	Sediment & Erosion Control Details	B	8/03/2018
1266-OSD Sheet 1 of 5	Osd Catchment Plan	28/05/2018
1266-OSD Sheet 2 of 5	Drainage Long. Sections Lines 2, 3 & 5	28/05/2018
1266-OSD Sheet 3 of 5	Drainage Long. Sections Lines 7, 9 To 17 Inclusive	28/05/2018
1266-OSD Sheet 4 of 5	Drainage Long. Sections Lines 18, 19, 20, 23, 24, 25 & 26	28/05/2018
1266-OSD Sheet 5 of 5	Drainage Calculations	28/05/2018
BASIX Certificate No. 823555M_02	JHA Consultant Engineers (NSW) Pty Ltd		3 April 2018

3. Development consent is granted to Development Application No. 1951/2017/JP seeking consent for subdivision to create three residential lots (known as lots 1, 2 and 3) and one residual lot for road widening, the demolition of existing structures, tree removal, earthworks, construction of roads and installation of services, construction of a multi-dwelling housing development comprising 111 townhouses on Lots 1 and 2 over one level of basement car parking accommodating a total of 222 car parking spaces, associated landscaping works and provision of communal areas, strata subdivision of the townhouses and use of unit No. 82 as an exhibition home on the land at 17-21 Mason Road, Box Hill subject to the condition of consent annexed hereto and marked “A”.

4. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

……………………………

Jenny Smithson

Commissioner of the Court

Annexure A (516 KB, pdf)