Woodside Properties Pty Limited & anor 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) 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: 05 December 2016