Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

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/409/2023 (the DA) seeking consent for the community title subdivision to create 13 residential lots including associated servicing works, roadworks, earthworks, demolition and landscaping at 255, 255A and 255B Avoca Drive (legally known as Lot A, DP 449600, Lots 2, 3 and 9 DP 976799); and 19 Picketts Valley Road, Kincumber (legally known as Lot A, DP 449600 and Lots 2, 3 and 9 DP 976799) (the site).

2. The DA as lodged with the Respondent on 22 March 2023 included the following elements:

1) Demolition of the existing structures and driveway;

2) Consolidation of the 4 lots into one (1) lot and Community title subdivision to create thirteen (13) lots;

3) Infrastructure works internal and external to the site to create water, stormwater, sewer, electricity and NBN connections;

4) The construction of a private road internal to the site and relocation of existing vehicular access to Avoca Drive approximately 70m east of the current position;

5) Earthworks, filling and flood mitigation works;

6) Installation of water quality/quantity treatment devices;

7) Removal of vegetation; and

8) Landscaping.

3. The Respondent stated in its amended Statement of Facts and Contentions (the amended SOFAC) that essential servicing for the site will involve the following aspects occurring internally and externally to the site:

1) Water and wastewater pipe infrastructure works to connect to the existing Council infrastructure;

2) The construction of an internal private access road with associated kerbing and passing bays; and

3) All other utility services will be extended and augmented as required to service future dwellings.

4. The Court granted leave to amend the DA on which the Applicant relied upon on 3 May 2024. The Court also ordered that the Applicant pay the Respondent's costs pursuant to s 8.15(3) of the EPA Act.

5. 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 22 July 2024. I presided over the s 34 conciliation conference. Two submitters attended the on-site view and made submissions to the Court.

6. 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.

7. A Notice of Motion was filed 11 October 2024 seeking leave to amend the application (the further amended DA) and rely on documents of Exhibit A submitted with the Notice of Motion. This motion was granted by the Court on 18 October 2024. The Court ordered that the Applicant pay Respondent's costs thrown away as a result of the amendments to the application, pursuant to s 8.15(3) of the EPA Act as agreed or assessed.

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

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1969e245d295e3e63cf5d969)

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