Shepherd v Shoalhaven City council [2019] NSWLEC 1351

Land and Environment Court New South Wales

Medium Neutral Citation: Shepherd v Shoalhaven City council [2019] NSWLEC 1351 Hearing dates: Conciliation conferences on 21 and 26 June 2019, 2 and 11 July 2019 Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Class 1 Before: Bish C Decision: (1) The Appeal is upheld. (2) The Order No. 12 dated 19 September 2018 (reference ON2018/5981) given by the Respondent to the Applicant pursuant to s 124 & s 152 of the Local Government Act 1993 is revoked. Catchwords: DEVELOPMENT APPLICATION – flood levee works – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Local Government Act 1993 Category: Principal judgment Parties: Colin Shepherd (Applicant) Shoalhaven City Council (Respondent) Representation: Counsel: M Staunton (Applicant)

Solicitors: John McGuire and Associates (Applicant) S Schneider, Houtson Dearn O'Connor (Respondent) File Number(s): 2018/332582 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the orders (reference ON2018/5981) made by Shoalhaven City Council (the Council) which seeks construction of a suitably sized and designed levee to control the flow of floodwaters on Lot 1 DP 871574, also known as 2 Southern Road, Terara (the site). 2. The orders for required works on the site are made by Council, pursuant to s 124 (table order 12) of the Local Government Act 1993 (LG Act) and dated 19 September 2018. 3. This Class 1 appeal is made under s 18(a) of the Land and Environment Court Act 1979 (LEC Act). The Court is required to make a determination, pursuant to s 180(4) of the LG Act. 4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was initially held onsite on 21 June 2019, and thereafter resumed by telephone on 26 June, 2 July and 11 July 2019 in an attempt to resolve the contentions. I have presided over the conciliation conferences. There were no objections raised by third parties at this conciliation. 5. Following the conciliation conferences, 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 revoke the orders issued on 19 September 2018 by Council for levee works. 6. Under s 34(3) of the LEC Act, 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 34(3) to revoke the orders for levee works as specified. 7. The parties stated that there were no jurisdictional impediments to the making of this agreement. They identified the jurisdictional prerequisites of particular relevance in these proceedings are pursuant to ss 124 and 153 of the LG Act, requiring consistency with table order 12 " To do such things as are necessary to control the flow of surface water across land". 8. Council have made a separate binding agreement with the applicant to undertake the agreed works based on available scientific analysis which satisfy the requirements of s 124 of the LG Act. There are no other jurisdictional requirements, therefore the Council agrees the orders can be revoked pursuant to s 153 of the LG Act. 9. 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, and I hereby revoke the orders pursuant to s 180(4)(a) of the LG Act. 10. 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 to dispose of the proceedings in accordance with the parties' decision. 11. The Court orders: 1. The Appeal is upheld. 2. The Order No. 12 dated 19 September 2018 (reference ON2018/5981) given by the Respondent to the Applicant pursuant to s 124 & s 152 of the Local Government Act 1993 is revoked. ………………………. S Bish Commissioner of the Court