Australia, June 12 -- New South Wales Land and Environment Court issued text of the following judgement on May 13:

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application no. DA-146/2022 for the demolition of all existing structures and the erection of a five-storey mixed use development comprising two levels of basement car parking, 20 residential units and associated landscaping and site works (DA) at 273-275 Ocean View Road, Ettalong Beach also legally known as Lots 22 and 23 in DP10650 (site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 4 February 2025 with subsequent adjournments. I presided over the conciliation conference.

3. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the Applicant amending DA-146/2022 in accordance with the documents listed at below (amended DA).

Table omitted, can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b22178dc8421f4b3573c4)

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. This decision involved the Court upholding the appeal for the amended DA and granting development consent subject to conditions of consent.

5. The final s 34 agreement was submitted to the Court on 30 April 2025.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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 the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how these have been satisfied. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

9. I am satisfied that owners consent accompanied the Class 1 appeal.

10. The DA was lodged to Council on 8 February 2022. The Respondent notified the DA between 18 February 2022 to 7 March 2022, 14 October 2022 to 9 November 2022. 48 submissions were received during the first notification period, whilst 28 submissions were received for the later. At the commencement of the conciliation conference, the Court and parties heard oral concerns from several objectors.

11. As the parties have reached agreement, the Court's role is limited to jurisdictional matters. The merit concerns raised in the submissions have been considered by the Respondent and Applicant.

12. The parties have agreed that s 4.15(1)(b)-(e) of the EPA Act have been considered, as demonstrated in the Statement of Environmental Effects prepared by Wales & Associates dated 17 April 2023.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b22178dc8421f4b3573c4)

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