Cleary v Chief Executive of the Office of Environment and Heritage [2019] NSWLEC 1204

Land and Environment Court New South Wales

Medium Neutral Citation: Cleary v Chief Executive of the Office of Environment and Heritage [2019] NSWLEC 1204 Hearing dates: Conciliation conference on 6 May 2019 Date of orders: 08 May 2019 Decision date: 08 May 2019 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) Approval is granted to the amended Aboriginal Heritage Impact Permit No. C0003424, as set out at Annexure A. (2) The appeal is upheld. (3) Each party is to pay its own costs. Catchwords: ABORIGINAL HERITAGE IMPACT PERMIT – appeal against the imposition of a condition of an Aboriginal Heritage Impact Permit – conciliation conference – agreement between the parties. Legislation Cited: Land and Environment Court Act 1979 National Parks and Wildlife Act 1974 Category: Principal judgment Parties: Phillip Cleary (Applicant) Chief Executive of the Office of Environment and Heritage (Respondent) Representation: Solicitors: E Whitney, Clayton Utz (Applicant) A Rollason, Department of Planning and Environment (Respondent) File Number(s): 2018/308351 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 90L(1)(b) of the National Parks and Wildlife Act 1974 against the imposition of condition 9 of Aboriginal Heritage Impact Permit No. C0003424 dated 18 September 2018 (AHIP). The AHIP was required in connection with a development proposal for the subdivision of land at 21 Hall Street, Pitt Town to create 13 residential allotments, which was the subject of a development consent granted by Hawkesbury City Council on 5 December 2015 (as modified on 4 July 2017) (the Development Consent). The AHIP is a pre-condition to commencing works approved by the Development Consent. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6 May 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision involved amending the salvage excavation methodology conditioned in the AHIP. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 90L(2)(b) of the National Parks and Wildlife Act 1974.