Land and Environment Court New South Wales Medium Neutral Citation: Rocksee Pty Ltd v Tweed Shire Council [2022] NSWLEC 1285 Hearing dates: Conciliation conference on 28 April 2022 Date of orders: 03 June 2022 Decision date: 03 June 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The appeal is upheld. (2) The application to modify Development Consent DA07/0945 in the terms set out in Annexure "A" is approved. (3) The terms of the consolidated Development Consent DA07/0945, as modified are set out in in Annexure "B". Catchwords: MODIFICATION APPLICATION – conditions of consent relating to stormwater – amenity – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.9, 4.55 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s 34 Tweed Shire Local Environmental Plan 2014 Texts Cited: Tweed Shire Development Control Plan 2008 Category: Principal judgment Parties: Rocksee Pty Ltd (Applicant) Tweed Shire Council (Respondent) Representation: Counsel: S Gadiel (Solicitor) (Applicant) J Corridini-Bird (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/363471 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Modification Application DA07/9045.05 (the MA) by the Tweed Shire Council (hereafter the Council), which seeks amendment and deletion of stormwater related conditions to an existing consent on Lot 1 in DP 781512, Lot 290 DP 75540 and Lot 630 DP 755740, known as 7 Elsie Street, Banora Point (hereafter the site). 2. The MA was refused on 28 September 2021. The original Development Application, DA07/0945 (DA), was granted by Council on 17 August 2010. 3. The Class 1 appeal against refusal of the MA is made pursuant to s 8.9(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and specifically relates to the following changes to conditions in the DA: 1. Condition 6 – amend, and 2. Conditions 7, 29, 111, 112 – delete 1. The Court agreed to a conciliation conference, pursuant to s 34(1) of the Land and Environment Court Act 1979 (Court Act), without an onsite view, by agreement of the parties. The conciliation was held remotely by Microsoft Teams. 2. The Court has not had the benefit of a site view, and therefore relies on the expert evidence, photographs, plans, and documents supporting the MA that contextualise the site. 3. The Council agreed for the applicant to amend the plans and documents, that amend the MA, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Reg). 4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court. At the conciliation conference, after expert consultation and changes to plans, the parties agreed to amend and delete the relevant conditions of consent, as identified in Annexure A of the orders, and to be relied upon in the granting of consent to the MA. 5. This decision of the parties is to uphold the appeal and grant consent to modify DA07/0945, with consolidated conditions of consent provided in Annexure B. 6. Pursuant to s 34(3) of the Court 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 power under s 4.55(1A) of the EPA Act, to modify DA07/0945.05, as described in Annexure A. The proposed DA's conditions of consent are described in Annexure B. 7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(1A) of the EPA Act, as being provided in the Tweed Shire Local Environmental Plan 2014 (TSLEP). Also of relevance, is the Tweed Shire Development Control Plan 2008 (TSDCP). The parties agree that the amendments to the conditions of consent address the relevant jurisdictional requirements. 8. The parties agree that the relevant requirements of the TSLEP remain satisfied and are unchanged by the amendment of the DA's conditions of consent, specifically relating to stormwater drainage and management. By agreement of the parties, the controls of the TSDCP are also achieved. 9. The requirements of s 4.55(1A)(a) of the EPA Act are satisfied. The parties agree that the proposed changes to the development will have minimal environmental impact. 10. The Council confirms that no notification of the MA under appeal was made due to the limited changes proposed, pursuant to the requirements of the TSDCP, and that subs 4.55(1A)(c) and (d) of the EPA Act are satisfied. 11. The parties agree that the modification, as agreed, is substantially the same as previously approved. The parties confirm that the requirements of s 4.55(1A)(b) of the EPA Act are satisfied, in addition to the requirements of subs 4.55 (3) and (4). 12. I am satisfied that based on the evidence before the Court and advice of the experts, there are no jurisdictional impediments to the agreement seeking amendments to stormwater drainage and management on the site, as described in Annexure A. This amended appeal for modification of DA07/0945, satisfies the requirements of s 4.55(1A) of the EPA Act. 13. 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 Court Act to dispose of the proceedings in accordance with the parties' decision. 14. The Court notes: 1. That the Respondent as the relevant consent authority has agreed, under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the application for modification of the development consent (DA07/0945) granted by the Respondent on 19 August 2010 by DA07/0945.05. 2. That the Respondent has uploaded or verified the amended application on the NSW planning portal on 6 May 2022. 3. That the Applicant has subsequently filed the amended application with the Court on 6 May 2022. 1. The Court orders that: 1. The appeal is upheld. 2. The application to modify Development Consent DA07/0945 in the terms set out in Annexure "A" is approved. 3. The terms of the consolidated Development Consent DA07/0945, as modified are set out in in Annexure "B". I certify that this and the preceding 3 pages are a true copy of my reasons for judgment. ………………………… Sarah Bish Commissioner of the Court Annexure A (31242, docx) Annexure B (71464, docx) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2022