Bowtell v Port Stephens Council [2018] NSWLEC 1392

Land and Environment Court New South Wales

Medium Neutral Citation: Bowtell v Port Stephens Council [2018] NSWLEC 1392 Hearing dates: Conciliation conference on 30 July 2018 Date of orders: 30 July 2018 Decision date: 30 July 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: MODIFICATION APPLICATION – application to modify a court granted consent - conciliation conference - agreement between the parties - orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Laurie Bowtell (Applicant) Port Stephens Council (First Respondent) Environment Protection Authority (Second Respondent) Representation: Solicitors: G Long, Long Legal Pty Ltd (Applicant) A Pickup, Local Government Legal (1st Respondent) I Krynina, Environment Protection Authority (2nd Respondent) File Number(s): 2018/44495 Publication restriction: No

Judgment 1. COMMISSIONER: This is an application by Mr Bowtell to modify a development consent granted by the Court on 15 March 2017 in proceedings 165266 of 2016 for a rural industry (including organic composting) at Lot 2 DP 1108702, 13 Barleigh Ranch Way, Eagleton (DA 16-2012-630-1). That consent contained deferred commencement conditions that were required to be satisfied within 12 months of the grant of consent. On 26 February 2018 in proceedings number 2018/44602, the Court made an order extending by 12 months the time by which the applicant is required to satisfy the deferred commencement conditions. 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 s 34(3) of the Land and Environment Court Act 1979 are: 1. The application is granted. 2. Development Consent No. 16-2012-630-1 for a Rural Industry (including Organic Composting) at Lot 2, DP1108702, 13 Barleigh Ranch Way, Eagleton, is modified as follows:- 1. by deleting deferred commencement conditions 4 and 6 from Part A; 2. the insertion of a new condition 4A after the existing condition 4 in Part B that reads as follows:- "All relevant approvals and licences are to be obtained from the Department of Primary Industry – Office of Water for water supply works and/or use under the Water Management Act 2000." 1. Development Consent No. 16-2012-630-1A is now subject to the consolidated conditions of consent in Annexure A. ………………………. Commissioner Gray Annexure A (C)