Woodside Properties Pty Limited v Wingecarribee Shire Council

[2016] NSWLEC 1578

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woodside Properties Pty Limited & anor v Wingecarribee Shire Council [2016] NSWLEC 1578
Hearing dates:	Conciliation conference on 23 November 2016
Date of orders:	30 November 2016
Decision date:	30 November 2016
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	See (5) below
Catchwords:	Development Consent: modification 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:	Woodside Properties Pty Limited (First Applicant) Rochester Estate Pty Limited (Second Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: Mr P. Rigg, Solicitor (Applicant) Mr C. McFadzean, Solicitor (Respondent) Solicitors: Peter R. Rigg (Applicants) Swaab Attorneys (Respondent)
File Number(s):	2016/00235027
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against a deemed refusal to modify conditions relating to a subdivision.

2. 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”.

3. 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.

4. 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.

5. 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. Modification Application No. 04/0353.06 to modify Development Consent No. 04/0353 for the purpose of a thirty-two lot subdivision at 102-106 and 108-114 Old Wingello Road, Bundanoon, is determined by approving the modifications as set out in Annexure A.

3. As a consequence of order (2), Development consent No. 04/0353.06, is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

…………….

Rosemary Martin

Senior Commissioner

235027.16 - Annexure A (7.44 KB, pdf)

235027.16 - Annexure B - Consolidated Conditions of Consent (97.0 KB, pdf)