Koresoft Pty Ltd v Natural Resources Access Regulator [2019] NSWLEC 1421

Land and Environment Court New South Wales

Medium Neutral Citation: Koresoft Pty Ltd v Natural Resources Access Regulator [2019] NSWLEC 1421 Hearing dates: Conciliation conference on 19 August 2019 Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders: The Stop Work Order dated 21 December 2018 issued by the Respondent to the Applicant is repealed. Catchwords: ORDERS: conciliation conference; agreement between the parties; orders to stop work on channel network Legislation Cited: Interpretation Act 1987 No. 15 Land and Environment Court Act 1979 Water Management Act 2000 Category: Principal judgment Parties: Koresoft Pty Ltd (Applicant) Natural Resources Access Regulator (Respondent) Representation: Solicitors: J Marquet, McCartney Young Lawyers (Applicant) M Ryan, NSW Department of Industry (Respondent) File Number(s): 2019/9780 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against a stop work order made by the Natural Resources Access Regulator (NRAR) regarding unlawful construction of a water management work, being a network of channels, on Lot 4 DP 810118, also known as 219 The Saddle Road, Brunswick Heads (the site). 2. The orders for discontinuance of works to the channels on the site are made by NRAR, pursuant to s 327(2) of the Water Management Act (WM Act) and dated 21 December 2018. 3. This Class 1 appeal is made under s 17(c) of the Land and Environment Court Act 1979 (LEC Act). The Court is required to make a determination, pursuant to s 368 of the WM Act and has power under s 43(2) of the Interpretation Act 1987 No. 15. 4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held onsite on 19 August 2019. I have presided over the conciliation conference. There were no objections raised by third parties at this conciliation. 5. 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. This decision is to uphold the appeal and repeal the orders issued on 21 December 2018 by NRAR. 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 repeal the orders for the stop work order to the network of channels as so identified. 7. NRAR have made a separate binding agreement with the applicant to address the issues raised in contention based on previous approvals for these works. 8. The parties stated that there were no jurisdictional impediments to the making of this agreement. 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 repeal the orders pursuant to s 368 of the WM Act and s 43(2) of the Interpretation Act 1987 No. 15. 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 Stop Work Order dated 21 December 2018 issued by the Respondent to the Applicant is repealed. ……………………. Sarah Bish Commissioner of the Court