Land and Environment Court New South Wales Medium Neutral Citation: Namany Pty Ltd v Albury City Council [2019] NSWLEC 1438 Hearing dates: Conciliation conference on 11 September 2019 Date of orders: 16 September 2019 Decision date: 16 September 2019 Jurisdiction: Class 1 Before: Horton C Decision: See orders at [10] Catchwords: DEVELOPMENT APPEAL – land subdivision – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000 Land and Environment Court Act 1979 Albury Local Environmental Plan 2010 Cases Cited: Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155 Category: Principal judgment Parties: Namany Pty Ltd (Applicant) Albury City Council (Respondent) Representation: Solicitors: A Brickhill, Bradley Allen Love (Applicant) M Rogers, Kell Moore Pty Ltd (Respondent) File Number(s): 2019/21211 Publication restriction: No Judgment 1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Albury City Council (the Respondent) of Development Application No. 10.2018.36431 for a six (6) lot Torrens title subdivision of lot 3032 in DP1243616 at Diamond Drive, Thurgoona in two stages. 2. Following the lodgement of the appeal, the parties continued to confer on the application. Arising from discussion between the parties, amendments were agreed to that further subdivided Lot 602 to provide Lot 603, and Lot 604. Furthermore, an open space concept plan was prepared for Lot 604. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 September 2019. I presided over the conciliation conference. However, prior to the conciliation conference, the parties had conferred and had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 4. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 9 September 2019. 5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development by grant of the Certificate subject to agreed conditions annexed to the s 34 agreement. 6. 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 explained to me during the conference as to how conformance with the jurisdictional prerequisites has been achieved, and I am satisfied for the following reasons: 1. The Applicant seeks to rely on cl 55 of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) to amend the application and submits that availability of the power found in cl 55 of the EPA Regulations is to be determined having regard to the beneficial and facultative nature of the provision, consistent with Jagot J in Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155, at [9]. As the application contains the same overall dimensions, and a similar arrangement of lots proposed for subdivision with minor re-labelling of the lots, I agree that the application may be amended, pursuant to cl 55(1) of the EPA Regulations. 2. The site is stated to be within the B2 Local Centre of the Albury Local Environmental Plan 2010 (ALEP). The objectives of the zone are as follows: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that the densities for commercial development reflect the needs of the local community and the capacity of the existing road and transport network. 1. I am satisfied that the provisions of cl 7.2 of the ALEP have been addressed in approvals granted previously, and that no works are proposed that would require consideration of cl 7.2. 2. As the application is integrated development, I am satisfied that the NSW Rural Fire Service has provided General Terms of Agreement, conformance with which are found in the condition in Annexure 'A'. 1. I am 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. 2. 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. 3. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 4. The Court orders that: 1. The Applicant is granted leave to amend Development Application No. 10.2018.36431.1 and rely upon the following amended plans, contained at Annexure "A". Plan Title Drawing No. / Ref Revision Date Plan of Proposed Subdivision (Walpole Surveying) 16178 5a 6/08/2019 Open Space Concept Design (SJE Consulting) 100457-0801 B 9/07/19 1. The appeal is upheld. 2. Development Application No. 10.2018.36431.1 for an eight (8) lot torrens title staged subdivision is approved, subject to the conditions contained in Annexure "B". 3. Each party to bear their own costs. ……………………………. T Horton Commissioner of the Court Annexure A (191 KB) Annexure B (270 KB) ********** 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: 20 September 2019