Land and Environment Court New South Wales Medium Neutral Citation: Heinrich Ruiz de Roxas v Bega Valley Shire Council [2017] NSWLEC 1633 Hearing dates: Conciliation conference on 29 May 2017 Date of orders: 10 November 2017 Decision date: 10 November 2017 Jurisdiction: Class 1 Before: Dixon C Decision: See (4) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Heinrich Ruiz de Roxas (Applicant) Bega Valley Shire Council (Respondent) Representation: Solicitors: Conomos Legal (Applicant) M E McMahon Associates (Respondent) File Number(s): 2017/35436 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 section 96 modification application 2014.430 lodged on 15 May 2016 seeking to modify conditions 11 and 66 is approved subject to the conditions in Annexure 'A'. 3. 1. Condition 11 is amended to read as follows: "Payment to Council of the following contributions pursuant to Section 94A of the Environmental Planning and Assessment Act and Bega Valley Section 94 and 94A Contributions Plan 2014 prior to the issue of the occupation certificate for each nominated stage within the development. Indexation: Where the monetary contribution is not paid before the first anniversary of the date of this development consent, the contribution amount must be indexed between the date of the consent and the date of payment, in accordance with annual movements in the Consumer Price Index (All Groups Index) for Sydney published by the Australian Statistician. Time for payment: Deferred payments of contributions may be accepted in certain circumstances and will need to be secured by bank guarantee. Refer to the contributions plan for Council's policy on deferred payments.Reason: To ensure the provision and adequacy of public infrastructure within the Bega Valley Shire for the users of new developments." 1. Condition 66 is amended to read as follows: "Prior to the issue of any occupation certificate for any part of the approved development, Cattle Bay Road shall be designed and constructed in accordance with the engineering plans prepared by Tasman Engineering Consultants entitled "Cattle Bay Road Upgrade Concept" drawing number E191 (sheets 1 to 5 inclusive) dated 19 June 2017." ………………………. Susan Dixon Commissioner of the Land and Environment Court of NSW Annexure A (C) (260 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: 10 November 2017