SW Rocks Development Pty Limited v Kempsey Shire Council [2019] NSWLEC 1520

Land and Environment Court New South Wales

Medium Neutral Citation: SW Rocks Development Pty Limited v Kempsey Shire Council [2019] NSWLEC 1520 Hearing dates: Conciliation conference on 3 September 2019 Date of orders: 29 October 2019 Decision date: 29 October 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1. (2) Appeal upheld. (3) Development Application T6-17-446 in respect of land known as 30 Waianbar Avenue, South West Rocks (comprising Lot 35; DP 1214499) for a Concept Approval for a 221 Lot Residential Subdivision together with an Approval for Stage 1 thereof (comprising the subdivision of 29 Residential Lots) is approved subject to the conditions annexed hereto and marked "A". Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: SW Rocks Development Pty Limited (Applicant) Kempsey Shire Council (Respondent) Representation: Counsel: S Griffiths (Solicitor) (Applicant) F Berglund (Respondent)

Solicitors: Pikes & Verekers Lawyers (Applicant) Cooney Harvey Doney (Respondent) File Number(s): 2018/390593 Publication restriction: No

Judgment 1. COMMISSIONER: This is an application for concept approval of a 221 lot residential subdivision (including a detailed proposal for Stage 1 which comprises 29 residential lots) of Lot 35 in DP 1214499 at 30 Waianbar Avenue, South West Rocks. 2. 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 3 September 2019. I presided over the conciliation conference. 3. During the conference, the parties heard from a representative of local residents who are critical of the concept proposal because it did not provide for the necessary major circulation routes and connections to achieve a simple and safe movement system for private vehicles, public transport, pedestrians and cyclists. A specific concern was whether Waianbar Avenue would have sufficient capacity to cater for Stages 1-5 as Stage 6 is not intended to proceed until such time as a further connection to Phillip Drive is provided. 4. In response to these matters, the applicant has amended its staging plans to bring forward the construction of relevant infrastructure. As a result of these changes, the parties have now reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves upholding the appeal and granting development consent to the amended development application subject to conditions. 5. 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 4.16 of the EPA Act and upholding the appeal and granting conditional consent. Before I can exercise that power, I must be satisfied that I have the requisite jurisdiction to do so. In that regard, I have considered the statutory framework (as outlined in the Council's Statement of Facts and Contentions filed on 4 March 2019) and the terms of the amended application and conditions which incorporate the General Terms of Approval from the NSW Rural Fire Service and NSW Water and I have formed the view that there are no outstanding jurisdictional prerequisites that must be satisfied before this function can be exercised. 6. Accordingly, 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. 7. The Court orders: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1. 2. Appeal upheld. 3. Development Application T6-17-446 in respect of land known as 30 Waianbar Avenue, South West Rocks (comprising Lot 35; DP 1214499) for a Concept Approval for a 221 Lot Residential Subdivision together with an Approval for Stage 1 thereof (comprising the subdivision of 29 Residential Lots) is approved subject to the conditions annexed hereto and marked "A".