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". …………………………… S Dixon Senior Commissioner of the Court Annexure A (192 KB, pdf) ********** 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: 30 October 2019