Land and Environment Court New South Wales Medium Neutral Citation: HBU Projects No 2 Pty Ltd v Lake Macquarie City Council [2018] NSWLEC 1450 Hearing dates: Conciliation conference on 7, 14 and 28 June 2018; 30 July 2018 Date of orders: 21 August 2018 Decision date: 21 August 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [5] below Catchwords: DEVELOPMENT 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: HBU Projects No 2 Pty Ltd (Applicant) Lake Macquarie City Council (Respondent) Representation: Solicitors: G Long, Long Legal (Applicant) S Lucy, Lake Macquarie City Council (Respondent) File Number(s): 2018/75929 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by HBU Projects No 2 Pty Ltd against the actual refusal by Lake Macquarie City Council of DA/1582/2017 for proposed multi-dwelling housing at 37 Wilsons Road, Mount Hutton (Lot 103 DP 1076796). 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 Applicant be granted leave to rely upon the following amended plans: Plan Drawing Revision Date 1.1 Architectural Plans 2.08.2018 (a) Cover sheet DA-001 J (b) Roof Analysis Plan DA-001 J (c) Lot Plan DA-100 J (d) Ground Floor Site Plan DA-101 J (e) First Floor Site Plan DA-102 J (f) Elevations DA-201 J DA-202 J DA-203 J (g) Unit 01-03 Plans DA-104 J (h) Unit 01-03 Elevations DA-402 J (i) Unit 01-03 Section DA-402 J (j) Unit 04-03 Plans DA-404 J (k) Unit 04-06 Elevations DA-405 J (l) Unit 04-06 Sections DA-406 J (m) Unit 07 Plans DA-407 J (n) Unit 07 Elevations and Section DA-408 J (o) Sun Diagrams DA-500 J (p) Materials Selection DA-501 J DA-502 J 1.2 Landscape Plans 8.08.2018 (a) Cover Sheet L000 K (b) Landscape Plan L301 K (c) Landscape Details L401 G (d) Indicative Plant Schedule L501 H 1.3 (a) Sedimentation and Erosion Control Plan C01 8 7.08.2018 (b) Sedimentation and Erosion Control Details C02 5 1.4 (a) Stormwater Plan C03 8 7.08.2018 (b) Stormwater Details C04 5 1.5 (a) Turning Path Entry Plan Sheet 1 T01 3 7.08.2018 (b) Turning Path Entry Plan Sheet 2 T02 3 (c) Turning Path Entry Plan Sheet 3 T03 3 (d) Turning Path Exit Plan Sheet 1 T04 3 (e) Turning Path Exit Plan Sheet 2 T05 3 (f) Turning Path Exit Plan Sheet 3 T06 3 1. The Applicant pay the Respondent's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed in the sum of $5,000 within 30 days from the date of these Orders. 2. The appeal be upheld. 3. Development consent be granted to DA/1582/2017, as amended, for multi-dwelling housing at Lot 103 DP 1076796, 37 Wilsons Road, Mount Hutton subject to the conditions set out in Annexure A. ………………………. D M Dickson Commissioner of the Court Annexure A (63.2 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: 27 August 2018