Optima Developments Pty Ltd v Hawkesbury City Council

Judgment

1. COMMISSIONER: This appeal was lodged by Optima Developments Pty Ltd (applicant) under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) and concerns the refusal by Hawkesbury Local Planning Panel of development application number DA 0011/23 (DA). The DA, as amended, seeks consent for a turf farm and associated development on 54 Derrig Road, Tennyson and 982 Kurmond Road, North Richmond (Lot 3 in DP 548570 and Lot 18 in DP 16781) (site). Hawkesbury City Council (Council) is the first respondent to the appeal by virtue of s 8.15(4) of the EPA Act. On 17 January 2024, P Chandler, an adjoining property owner, was granted leave to be heard as the second respondent.

Conciliation and agreement between the parties

1. At the parties' request, the Court arranged a conciliation conference between them under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 13 September 2024, and at which I presided. At the conference, the parties provided evidence of, and explained, the signed agreement behind the decision between them in regard to the outcome of the proceedings. This decision involved the Court upholding the appeal and granting development consent to the DA, as amended, to address various contentions, and subject to conditions.
2. 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 point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [65]). Ultimately, I find that there are none. But there are certain statutory queries which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional statement received by the Court on 13 September 2024.