Land and Environment Court New South Wales Medium Neutral Citation: Malcolm Holdings Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1636 Hearing dates: Conciliation conference on 23 November 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Class 1 Before: Bish C Decision: See [10] below Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Wingecarribee Local Environmental Plan 2010 Category: Principal judgment Parties: Malcolm Holdings Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Solicitors: R Cunningham, Shaw Reynolds Lawyers (Applicant) A Gough, Storey & Gough (Respondent) File Number(s): 2017/384428 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal by Wingecarribee Shire Council of Modification Application LUA08/1042.03, hereafter the MA. The MA seeks to amend and delete conditions issued under development consent No. LUA08/1042, which relates to subdivision of land into 25 lots on Lot A DP 927745 and Lot 4 DP 660174, also known as 24 Exeter Road, Exeter. 2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979). The Court is required to make a determination pursuant to s 4.56 of the EPA Act 1979. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 23 November 2018. I have presided over the conciliation conference. There were no objections raised by third parties at the conciliation for this appeal. 4. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to LUA08/1042.03 with conditions. 5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16(1) of the EPA Act 1979 to grant consent to the development application with conditions. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.56(1) of the EPA Act 1979, as consistency with the Wingecarribee Local Environmental Plan 2010 (WLEP 2010). Specifically, the parties explained that the development is essentially the same as approved under LUA08/1042, with no fundamental changes to the functioning of the site as approved. The proposed changes are limited to the road network, specifically entry and access to site. The relocation of entry/access points is sympathetic to the heritage character of the township of Exeter. 6. The parties explained that Exeter Road has been reclassified as a local road and therefore, pursuant to s 138 of the Roads Act 1993, the Council is the consent authority. 7. The proposed changes to the approved DA do not result in inconsistency with the WLEP 2010, and in particular will not result in any impacts to the function of the approved subdivision development nor to adjacent properties. 8. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979. 9. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision. 10. The Court orders: 1. The Applicant is granted leave to amend the modification application by substituting the following plans and documentation, annexed hereto and marked "A1", as the plans and documentation relied upon for the purpose of the modification application: Plan Title Reference / Version Prepared By Dated Lot Layout Plan No 1704 LL01 Issue E Civil Development Solutions 28 September 2018 MTE Site Access Concept Plan Drawing No 2017-586-04B Revision B McLaren Traffic Engineering 13 November 2018 1. The applicant is to pay the respondent's costs thrown away in the amount of $3,000, inclusive of GST, to be paid on exchange of this agreement. 2. The appeal is upheld. 3. Consent is granted to modify development consent LUA08/1042.03 by modifying consent condition 51 as set out in the conditions of consent annexed hereto and marked "A2" relating to land at Exeter Road, Exeter and identified as Lot A in DP 927745 and Lot 4 in DP 660174. ………………………. Sarah Bish Commissioner of the Court Annexure A1 (3.83 MB, pdf) Annexure A2 (660 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 December 2018