NVE Menangle Pty Ltd v Wollondilly Shire Council and Department of Customer Services trading as Subsidence Advisory NSW [2022] NSWLEC 1546

NVE Menangle Pty Ltd v Wollondilly Shire Council and Department of Customer Services trading as Subsidence Advisory NSW [2022] NSWLEC 1546

The amended development application, with agreed conditions adopting relevant general terms of approval and addressing biodiversity, bushfire, mine subsidence, water management, zoning, contamination and development control matters, satisfied the relevant jurisdictional requirements and had no jurisdictional impediment. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement and grant consent.

Jurisdiction
Australia
Judgment Date
07 October 2022
Procedural Posture
Class 1 Appeal Against Refusal of Development Application Da/2020/637/1 / Section 34 Conciliation Conference; Agreement Between the Parties; Orders Made
Outcome
Appeal upheld; amended Development Application DA/2020/637/1 granted consent subject to conditions in Annexure A.
Legal Topics
['torrens Title Subdivision' 'bushfire Prone Land' 'biodiversity Values' 'mine Subsidence' 'integrated Development Approvals' 'conciliation Agreement']
['planning and Environment' 'development Consent' 'land Subdivision'] ['torrens Title Subdivision' 'bushfire Prone Land' 'biodiversity Values' 'mine Subsidence' 'integrated Development Approvals' 'conciliation Agreement']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application Da/2020/637/1 / Section 34 Conciliation Conference; Agreement Between the Parties; Orders Made

Legal Issues

  1. 1 ['Whether the Court could grant consent to amended Development Application DA/2020/637/1 for Torrens title subdivision into two residential lots.' 'Whether the jurisdictional prerequisites under the Environmental Planning and Assessment Act 1979 and related legislation were satisfied.' "Whether the parties' agreement was a decision the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979."]

Ratio Decidendi

The amended development application, with agreed conditions adopting relevant general terms of approval and addressing biodiversity, bushfire, mine subsidence, water management, zoning, contamination and development control matters, satisfied the relevant jurisdictional requirements and had no jurisdictional impediment. Because the parties' agreed decision was one the Court could have made in the proper exercise of its functions, the Court was required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that agreement and grant consent.

Court Disposition

Appeal upheld; amended Development Application DA/2020/637/1 granted consent subject to conditions in Annexure A.

Orders

  • ['The appeal is upheld.' "Development Application DA/2020/637/1, as amended, seeks Torrens title subdivision into two (2) residential lots on Lot 2 DP 734656, also known as 135 Quirkes Lane, Menangle is determined by grant of consent, subject to the conditions set out in Annexure 'A'."]