Land and Environment Court New South Wales Medium Neutral Citation: Wiser Capital Pty Ltd v The Hills Shire Council [2018] NSWLEC 1416 Hearing dates: Conciliation conference on 19 July 2018 Date of orders: 09 August 2018 Decision date: 09 August 2018 Jurisdiction: Class 1 Before: Smithson C Decision: See [4] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act Land and Environment Court Act 1979 Category: Principal judgment Parties: Wiser Capital Pty Ltd (Applicant) The Hills Shire Council (Respondent) Representation: Counsel: Dr S Berveling (Applicant) Solicitors: P Hudson, Marsdens Law Group (Respondent) Apex Lawyers Pty Ltd (Applicant) File Number(s): 2018/32124 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 Applicant is granted leave to amend Development Application No. 1951/2017/JP and to rely upon the following amended plans and documents: DRAWING NO. DESCRIPTION ISSUE DATE DA02 Location Plan C March 2018 DA03 Site Analysis Plan C March 2018 DA04 Ground Floor Layout & Site Statistics D March 2018 DA05 Roof Plan & Landscape C March 2018 DA06 Lower Ground Car Park Plan G 08/06/2018 DA29 Townhouse Type A9 C March 2018 DA30 Townhouse Type A10 C March 2018 DA18 Street Elevation 2 C March 2018 DA19 Street Elevation 3 C March 2018 000 Landscape Site Plan H 04/06/2018 101 Landscape Plan G 04/06/2018 102 Landscape Plan G 04/06/2018 103 Landscape Plan G 04/06/2018 104 Landscape Plan H 04/06/2018 105 Landscape Plan G 04/06/2018 106 Landscape Plan G 04/06/2018 107 Landscape Plan C 04/06/2018 108 Landscape Plan B 04/06/2018 109 Landscape Plan B 04/06/2018 110 Landscape Plan B 04/06/2018 501 Landscape Details & Plant Schedule F 28/05/2018 502 Landscape Details B 29/03/2018 1266-DA-B Locality Sketch, General Notes, Index B March 2018 Sheet 1 of 13 1266-DA-B Site Plan B 8/03/2018 Sheet 2 of 15 1266-DA-B Cosmos Way – Road No.1 Long. Section, Cross Sections – Ch.15.435 To Ch.60 & Typical B 8/03/2018 Sheet 3 of 13 1266-DA-B Cosmos Way – Road No.1 Cross Sections – Ch.75 To Ch.307.931 B 8/03/2018 Sheet 4 of 13 1266-DA-B Mason Road – Road No.2 Long. Sections, Cross Sections – Ch.00 To Ch.60 & Typical B 8/03/2018 Sheet 5 of 13 1266-DA-B Mason Road – Road No.2 Cross Sections – Ch.69.954 To Ch.150 B 8/03/2018 Sheet 6 of 13 1266-DA-B Taurus Way – Road No.3 Long. Section, Cross-Sections & Typical B 8/03/2018 Sheet 7 of 13 1266-DA-B Aries Way – Road No.4 Long. Sections, Cross-Sections, & Typical B 8/03/2018 Sheet 8 of 13 1266-DA-B Aurora Street – Road No.5 Long. Sections, Cross-Sections, & Typical B 8/03/2018 Sheet 9 of 13 1266-DA-B Demolition Plan B 8/03/2018 Sheet 10 of 13 1266-DA-B Tree Management Plan B 8/03/2018 Sheet 11 of 13 1266-DA-B Sediment & Erosion Control Plan B 8/03/2018 Sheet 12 of 13 1266-DA-B Sediment & Erosion Control Details B 8/03/2018 Sheet 13 of 13 1266-OSD Osd Catchment Plan 28/05/2018 Sheet 1 of 5 1266-OSD Drainage Long. Sections Lines 2, 3 & 5 28/05/2018 Sheet 2 of 5 1266-OSD Drainage Long. Sections Lines 7, 9 To 17 Inclusive 28/05/2018 Sheet 3 of 5 1266-OSD Drainage Long. Sections Lines 18, 19, 20, 23, 24, 25 & 26 28/05/2018 Sheet 4 of 5 1266-OSD Drainage Calculations 28/05/2018 Sheet 5 of 5 BASIX Certificate No. 823555M_02 JHA Consultant Engineers (NSW) Pty Ltd 3 April 2018 1. Development consent is granted to Development Application No. 1951/2017/JP seeking consent for subdivision to create three residential lots (known as lots 1, 2 and 3) and one residual lot for road widening, the demolition of existing structures, tree removal, earthworks, construction of roads and installation of services, construction of a multi-dwelling housing development comprising 111 townhouses on Lots 1 and 2 over one level of basement car parking accommodating a total of 222 car parking spaces, associated landscaping works and provision of communal areas, strata subdivision of the townhouses and use of unit No. 82 as an exhibition home on the land at 17-21 Mason Road, Box Hill subject to the condition of consent annexed hereto and marked "A". 2. The Applicant is to pay the Respondent's costs thrown away as a result of the amendments pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. …………………………… Jenny Smithson Commissioner of the Court Annexure A (516 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: 13 August 2018