Land and Environment Court New South Wales Medium Neutral Citation: SETT Homes Pty Ltd v Wingecarribee Shire Council [2019] NSWLEC 1544 Hearing dates: Conciliation conference on 1 November 2019 Date of orders: 08 November 2019 Decision date: 08 November 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders: (1) The Appeal is upheld. (2) Modification Application No. 16/0870.05 for the modification of Development Consent No. 16/0870 granted by the Respondent on 19 December 2016 ('Consent'), and relating to 16 – 18 Willow Street, Willow Vale, is approved such that the Consent is modified as set out at Annexure A. (3) As a consequence of (2) above, Development Consent No. 16/0870 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. Catchwords: MODIFICATION APPLICATION – amend conditions of consent relating to provision of public lighting – 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: SETT Homes Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: M Jaku (Solicitor) (Applicant) M Harker (Solicitor) (Respondent) Solicitors: Jaku Legal (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2019/75877 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by SETT Homes Pty Ltd (the applicant) lodged under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by v Wingecarribee Shire Council (the Council) of Modification Application No. 16/0870.05 (the modification application) to modify the consent issued to Development Application No. 16/0870 on 19 December, 2016 (the consent). 2. The modification application sought to modify condition 22 of the consent to delete a requirement to provide public lighting associated with a subdivision at 16-18 Willow Street, Willow Vale. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 5. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement. 6. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met. 7. Condition 22 of the consent is an engineering condition which requires the applicant to obtain approval to the design of certain works and services prior to the issue of a construction certificate (CC) for these works. A section of part (b) of condition 22 requires approval to the design of the public lighting that is to then be constructed in accordance with Council policies and specified requirements. 8. In this regard, the Council had inadvertently issued the CC without first having received or approved the required design for the public lighting. The applicant therefore undertook works in accordance with the CC and did not provide any public lighting. The applicant then sought to obtain a subdivision certificate (SC) which the Council has declined to issue, in part as no public lighting has been provided. 9. Arising from conciliation the applicant has agreed to provide the required public lighting works but, given the delays to obtaining Endeavour Energy certification for these works (the certification), sought for the consent to be modified to enable the SC to be issued ahead of these works. The works are to be designed having regard to a "Public Lighting Investigation Report" (the Investigation Report) prepared by Power Line Design and dated 12 September 2019. 10. The parties have agreed that the consent will be modified to amend condition 22 to delete any reference to the provision of public lighting and instead insert new conditions 22A and 22B. 11. Condition 22A in essence requires that within 6 months of the issue of the SC, the applicant will undertake all reasonable steps to obtain Endeavour Energy's certification to the design of the public lighting. Within a further 6 months, the applicant is then to carry out these works in accordance with the certification. If, however, the certification is not provided within 6 months of the SC issuance, within 7 months the applicant is to provide the Council with evidence of the steps undertaken to obtain the certification. 12. Condition 22B requires the applicant to lodge a bond to cover the cost of the public lighting works prior to the issue of the SC. The bond is to be released either when the works are undertaken in accordance with condition 22A or, if Endeavour Energy does not provide its certification, within 24 months of the issue of the SC. 13. Although condition 22B is poorly worded as it does not outline why there is a reference to 24 months for the public lighting works to instead be carried out, the intent is that the Council would use this additional time to try and obtain the necessary certification and then either have the applicant undertake the works (if that is agreed) and refund the bond, or use the bond to undertake or commission the works. After 24 months, if no certification is received the result would be that the public lighting is not provided and the bond is refunded. 14. As, however, the conditions as modified are lawful and agreed by the parties, and there are no other pre-conditions to be met in order to modify the consent as sought, the modified consent is issued accordingly. 15. The Court orders that: 1. The Appeal is upheld. 2. Modification Application No. 16/0870.05 for the modification of Development Consent No. 16/0870 granted by the Respondent on 19 December 2016 ('Consent'), and relating to 16 – 18 Willow Street, Willow Vale, is approved such that the Consent is modified as set out at Annexure A. 3. As a consequence of (2) above, Development Consent No. 16/0870 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. ………………………… Jenny Smithson Commissioner of the Court Annexure A (83.3 KB) Annexure B (640 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: 08 November 2019