Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Northern Beaches Council of Development Application DA2023/0121 (the DA) for the proposed subdivision of three existing lots into four, resulting in an additional residential lot and reconfiguration of a previously approved and constructed water quality system including a bio filtration detention basin on 25B, 27 and 29 Dove Lane, Warriewood, legally described as Lot 102 in DP 1303366 and Lots 2-3 in DP1272851 (the site).

2. The Court, exercising the functions of the Northern Beaches Council pursuant to s 39(2) of the Land and Environment Court Act 1979, has approved under the s 38(1) of the Environmental Planning and Assessment Regulation 2021 (Regulation), the Applicant amending Development Application DA2023/0121, filed with the Court on 4 October 2024 by Notice of Motion. On the 15 October 2024, the Applicant was granted leave to rely on an amended application (Amended Application) which included the following changes:

a) provision for a 3m wide deep soil vegetated buffer between the basin and the drainage easement to the north;

b) reduction in the size of the residue lot from 616m2 down to 500m2;

c) an increase in the landscaped area from 587m2 to 709m2;

d) an increase in the surface area of the below ground basin from 324.1m2 to 352.8m2 and a reduction in the internal depth from 2m to 1.7m;

e) addition of a 350m2 and 600mm deep vegetated bio-retention basin above the below ground detention tank with the planting of Macrophytes; and

f) modification of the local road and drainage inlets adjacent to the basin lot to facilitate a drainage catchment.

3. The Applicant subsequently provided further amended material and information referred to at paragraph 2 of the s 34 Agreement. The Respondent has agreed to the amendment of the development application to incorporate these documents pursuant to s 38 of the Regulation (Further Amended Application). The additional amendments made to the proposed development include:

a) Provision of a revised s 88B Instrument pursuant to the Conveyancing Act 1919, outlining the terms of the restrictions on title that relate to the maintenance of the stormwater basin;

b) An amended subdivision plan proposing subdivision of the existing detention basin which comprises three existing lots into five lots, including the conversion of the new lot into a residue lot; and

c) A maintenance schedule and further details as to the required procedures required to maintain the adequate function of the stormwater system.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, at which I presided on 27 November 2024. The Court notes that no objectors wished to speak at the conciliation conference.

5. Prior to the conciliation conference, the parties reached an in-principle agreement. This agreement between the parties involves the Court upholding the appeal and granting development consent to the Further Amended Application subject to those agreed conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 25 November 2024 and a revised agreement filed on 2 December 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to Further Amended Application plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement and is included in Annexure A.

7. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. These pre-requisites were explained by the parties during the conciliation conference, in order to allow the Court to make the agreed orders at [29].

Jurisdictional Prerequisites

Owners Consent

8. Pursuant to s 23 of the Regulation, Abax Contracting Pty Ltd is the proprietor of the three lots (Lot 2 and Lot 3 in DP1272851 and Lot 102 in DP 1303366) proposed for subdivision.

9. The proposal requires works in the road reserve to regrade Dove Lane, which is a Northern Beaches Council owned Road. Pursuant to s 39(2) of the LEC Act, the Court has the power to grant development consent to a development application on Council owned land. Additionally, through the s 34 agreement and Condition 15 of the Conditions of Consent in Annexure A, that requires the Applicant to obtain a s 138 approval under the Roads Act 1993, Council has provided its consent of the proposed works within the road reserve.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193be66f05deb7e8947520a9)

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