Rosehill Estate 1890 Pty Ltd v Tweed Shire Council [2021] NSWLEC 1236

Land and Environment Court New South Wales

Medium Neutral Citation: Rosehill Estate 1890 Pty Ltd v Tweed Shire Council [2021] NSWLEC 1236 Hearing dates: Conciliation conference on 30 March 2021 Date of orders: 10 May 2021 Decision date: 10 May 2021 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application DA 19/0888 is refused. (3) The Court notes that the parties have agreed that each party will bear its own costs of the proceedings. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing mineral water bottling facility – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 and 8.14 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Rosehill Estate 1890 Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: S Gadiel (Applicant) S Kondilios (Respondent)

Solicitors: Mills Oakley (Applicant) Hall and Wilcox Lawyers (Respondent) File Number(s): 2020/65515 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against refusal by Tweed Shire Council (hereafter the Council) to the consent for Development Application (DA) 19/0888. The DA seeks an increase in extraction volume of an existing (licensed) bore, continued provision of bottled water and bulk water supply as a 24 hour day, seven day a week operation with limited truck movements, and use of a turnaround area with piped delivery system on Lot 121 DP 1111869, Lot 66 DP 75515, Lot 1 DP 799355, Lot 1 DP 1241753, also known as 101 Bryens Road, Nobbys Creek (hereafter the site) and also relies on a Council owned road reserve. 2. This Class 1 appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) which was held between the parties on 30 March 2021, without an onsite view and conducted by Microsoft Teams. 4. Based on discussions between the parties regarding the extent, location and timing of works, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable. The decision of the parties is to dismiss the appeal and refuse the grant of consent for DA 19/0888. 5. The parties agree that the applicant requires time to undertake works that relate to the legal application of the DA, specifically its reliance on Council land in the road reserve, and therefore the appeal should be dismissed. 6. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under ss 4.16(1)(b) and 8.14 of the EPA Act. 7. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 19/0888 should be refused, pursuant to s 4.16(1)(b) of the EPA Act. 8. 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. 9. The Court orders that: 1. The appeal is dismissed. 2. Development Application DA 19/0888 is refused