Land and Environment Court New South Wales Medium Neutral Citation: Cavanagh v Wollondilly Shire Council (No 3) [2020] NSWLEC 1018 Hearing dates: Conciliation conference 12 December 2019 Date of orders: 17 January 2020 Decision date: 17 January 2020 Jurisdiction: Class 1 Before: Morris AC Decision: See orders at [9] Catchwords: DEVELOPMENT APPLICATION – subdivision – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Wollondilly Local Environmental Plan 2011 Cases Cited: Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181 Category: Principal judgment Parties: Samuel Cavanagh (Applicant) Wollondilly Shire Council (Respondent Representation: Counsel: C Shaw (Solicitor) (Applicant) A Bradbury (Solicitor) (Respondent) Solicitors: Shaw Reynolds Lawyers (Applicant) Bradbury Allen Love Lawyers (Respondent) File Number(s): 2019/95577 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Wollondilly Shire Council of Development Application No. 784/2018 which seeks consent for a five lot subdivision of Lot6 DP1128635 to be carried out at 11 Westminster Place, Razorback. 2. A preliminary question to determine the permissibility of the proposed subdivision was decided by Robson J in Cavanagh v Wollondilly Shire Council (No 2) [2019] NSWLEC 181. That decision determined that consent can be granted to the proposed subdivision pursuant to the provisions of cl 4.1B of Wollondilly Local Environmental Plan 2011 (LEP). 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 12 December 2019. I have presided over the conciliation conference. 4. 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. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. That agreement was based on amended plans prepared by the applicant, which, according to the council's experts, addressed the contentions in the case. 5. 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. 6. I have formed this state of satisfaction because the development is permissible; the lots are larger than provided for as minimum lots sizes under cl 4.1 of the LEP; adequate provision for servicing of the lots as required under cl 7.1 of the LEP has been demonstrated; no works are proposed in areas designated as "sensitive land" and I am satisfied the development will no adversely impact those areas (cl 7.3); the subdivision has been designed to minimise the extent of earthworks (cl 7.5); there is no evidence of contamination; a Fire Safety Authority has been issued by the Rural Fire Service and there are no jurisdictional issues that would prevent the grant of consent. 7. The conditions of consent address the agreed position of the experts in the proceedings. 8. As the parties' decision is a decision that the Court could have made in the proper exercise of is functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 9. The Court orders: 1. The Applicant is granted leave to amend the development application and rely on the amended plans and additional information, which involve amendments that the parties agree are minor. The amended and additional plans include the following: Drawing(s) Reference / Version Prepared By Dated Drawing No: 150715-sub Staging Plan for Proposed Subdivision, Sheet 1 of 2, Lot 6 DP 1128635 Revision G Sydney Land Surveyors 12 December 2019 Sheet 1 of 2 Drawing No: 150715-sub Staging Plan for Proposed Subdivision, Sheet 2 of 2, Lot 6 DP 1128635 Revision F Sydney Land Surveyors 10 December 2019 Drawing NO 19048–1372-101, General Overview Plan, Revision 0 CivPlan 5 December 2019 Sheet 1 of 10 Drawing No: 19048-1372-102, General Arrangement Plan Revision 0 CivPlan 5 December 2019 Sheet 2 of 10 Drawing No: 19048-1372-103, Road Layout Plan 1 of 2 Revision 0 CivPlan 5 December 2019 Sheet 3 of 10 Drawing No: 19048-1372-104, Road Layout Plan 2 of 2 Revision 0 CivPlan 5 December 2019 Sheet 4 of 10 Drawing No: 19048-1372-105, Westminster Road Sections Revision 0 CivPlan 5 December 2019 Sheet 5 of 10 Drawing No: 19048-1372-106, Lot 1 & 2 Access Sections Revision 0 CivPlan 5 December 2019 Sheet 6 of 10 Drawing No: 19048-1372-107, Lot 3, 4 & 5 Access Sections Revision 0 CivPlan 5 December 2019 Sheet 7 of 10 Drawing No: 19048-1372-108, Earthworks Plan Revision 0 CivPlan 5 December 2019 Sheet 8 of 10 Drawing No: 19048-1372-109, Soil & Water Management Plan Revision 0 CivPlan 5 December 2019 Sheet 9 of 10 Drawing No: 19048-1372-110, Soil & Water Management Details Revision 0 CivPlan 5 December 2019 Sheet 10 of 10 Drawing No. 150715 – BF Plan of Proposed Subdivision – Bushfire APZ Revision D Bushfire APZ 4 December 2019 Aerial Sheet 1 of 1 Drawing No. 150715 – BF Plan of Proposed Subdivision – Bushfire APZ Revision D Bushfire APZ 4 December 2019 Sheet 1 of 1 1. The Appeal is upheld. 2. Development Application No. 784/2018 for a five lot subdivision of Lot 6 DP1128635 to be carried out at 11 Westminster Place, Razorback NSW 2571 is approved subject to the conditions set out in Annexure 'A'. …………………….. Sue Morris Acting Commissioner of the Court Annexure A (144 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: 17 January 2020