Land and Environment Court New South Wales Medium Neutral Citation: Alora Davies Developments 103 Pty Ltd v Wollondilly Shire Council [2018] NSWLEC 1214 Hearing dates: Conciliation conference on 14 February and 20 March 2018 Date of orders: 04 May 2018 Decision date: 04 May 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Alora Davies Developments 103 Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: Solicitors: C Rose, Swaab Attorneys (Applicant) D Baird, Marsdens Law Group (Respondent) File Number(s): 2017/324028 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Alora Davies Developments 103 Pty Ltd against Wollondilly Shire Council's deemed refusal of DA434/2017 for the subdivision and creation of thirty-two (32) residential lots, construction of new roads, demolition of existing dwelling and structures, filling and compacting of the existing dam and partial filling of the dam on the northern boundary of Lot 5 in DP 245153 on land known as 94 Rita Street, Thirlmere NSW 2572 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 applicant is granted leave to amend the development application by relying on the following plans: Plan Title Author/Drawn By Plan Reference Dated Plan of Subdivision of Lot 5 DP 245153 Australian Survey Solutions (Paul Brandon) Surveyor's ref: 160810 24 January 2018, rev: C Landscape Street Tree Plan HLS Pty Ltd (Lindy Lean) L01, issue P2 29 June 2017 Biobasin Landscape Plan HLS Pty Ltd (Lindy Lean) L02, issue P1 29 June 2017 Development Overview Plan & General Notes Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-A050, rev: D 23 January 2018 Sediment & Erosion Control Plan & Demolition Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-B300, rev: E 23 January 2018 Sediment & Erosion Control Details Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-B310, rev: B 18 January 2018 Earthworks Grading Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C100, rev: D 18 January 2018 Earthwork Sections Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C200, rev: A 18 January 2018 Section A-A Earthwork Sections Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C201, rev: A 18 January 2018 Section B-B Earthwork Sections Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C202, rev: A 18 January 2018 Section C-C Earthwork Sections Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C203, rev: A 18 January 2018 Section D-D Earthwork Sections Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C204, rev: A 18 January 2018 Section E-E Earthworks Cut & Fill Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-C500, rev: B 29 September 2017 Roadworks Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-D100, rev: D 23 January 2018 Roadworks Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-D101, rev: B 23 January 2018 Rita Street (21-MRC01) & Proposed road 1 (21-MRC02) Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-D200, rev: B 29 September 2017 Longitudinal Section Proposed road 2 (21-MRC02) Longitudinal Section Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-D201, rev: B 29 September 2017 Drainage Plan Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-E100, rev: E 23 January 2018 OSD Calculations (Pre-development Layout) Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-E600, rev: D 23 January 2018 OSD Calculations (Post-development Layout) Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-E601, rev: B 23 January 2018 Water quality catchment plan, model & results Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-E700, rev: C 23 January 2018 Retaining Walls Plans Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-G200, rev: B 23 January 2018 Retaining Walls Details Martens & Associates Pty Ltd Project no. P1605525, dwg no. PS02-G201, rev: A 18 January 2018 1. The appeal is upheld; 2. Development Application No. 010.2017.00000434.001 for subdivision and creation of thirty-two(32) residential lots, construction of new roads, demolition of existing dwelling and structures, partial filling of a dam, earthworks and associated works on land known as 94 Rita Street, Thirlmere NSW 2572, is approved subject to the conditions of consent set out in Annexure A. ………………………. D M Dickson Commissioner of the Court Annexure A (156 KB, pdf) Attachment A (324 KB, pdf) Attachment B (991 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: 04 May 2018