Australia, April 14 -- New South Wales Land and Environment Court issued text of the following judgement on March 18:

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 of development application No DA 911/2023 (the DA) for the subdivision of the land legally described as Lot 5 DP 1228880, known as 45 Mulloway Road, Chain Valley Bay (the site) into two lots.

2. As originally made in the DA, proposed Lot 51 had an area of 1.2ha, and proposed Lot 52 had an area of 9.4ha. DA 911/2023 did not propose any works on the site.

3. There is a separate (concurrent) development application (DA 885/2023) for the same site, seeking consent for vegetation removal, demolition of existing structures and the construction of a manufactured home estate (the MHE) including associated site works, which is also the subject of Class 1 proceedings (LEC case number 2023/00357808 refers).

4. A conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties was convened by the Court on 24 June 2024. This conciliation conference also included the LEC case matter 2023/00357808 as the matters were heard together. I presided over the s 34 conciliation conference. No submitters attended as there no submissions made on the DA.

5. The s 34 conciliation conference was adjourned to allow time for amended plans to be prepared by the Applicant and assessed by the Respondent, and subsequently further adjourned multiple times to allow the parties time to consider and review the revised plans and to finalise the s 34 agreement and conditions of consent based on an amended development application (the amended DA).

6. The agreed amendments to the proposal result in an adjustment to the boundary line between the two proposed lots, now following a zone boundary line, such that Lot 51 is now proposed to be 1.16ha and Lot 52 is now proposed to be 9.45ha. Additionally, the amended proposal includes construction and connection of both lots to essential services - water, sewer and electricity - and ancillary vegetation clearing.

7. After the conciliation conferences, and the assessment by the Respondent of the amended plans, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

8. A signed s 34 agreement with Annexure A was filed with the Court on 21 December 2024 with amended plans and additional material (the amended DA) as agreed between the parties. The s 34 agreement is supported by an agreed statement of jurisdictional prerequisites.

9. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

10. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act. This decision involved the Court upholding the appeal and granting development consent to the DA subject to conditions.

11. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional note accompanying the s 34 agreement, and those requirements have been satisfied as follows.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195a0e11ebd224987103d3af)

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