Appeal Upheld: Resource Recovery Facility Must Comply with Conditions of Consent

The appeal was upheld, and the orders issued by the council were substituted with new ones, requiring the applicant to submit an application for approval of a cell design within six months.

Land and [ADDRESS] South Wales

Medium Neutral Citation: [NAME] v Northern Beaches Council [2017] NSWLEC 1395 Hearing dates: Conciliation conference on 16 June 2017 Date of orders: 27 July 2017 Decision date: 27 July 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: ORDERS: resource recovery facility – non-compliance with conditions of consent - conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and [ADDRESS] 1979 Category: Principal judgment Parties: [NAME] (Applicant) Northern Beaches Council (Respondent) Representation: Solicitor: [redacted] [NAME] (Respondent) File Number(s): 2016/329721, 2016/329742, 2016/329731 Publication restriction: No

Judgment 1. COMMISSIONER: These are three separate but related appeals in relation to Orders issued by the council in relation to non-compliance with conditions of consent for a resource recovery facility at [ADDRESS].

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and [ADDRESS] 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. [ADDRESS] also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

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

5. The final orders to give effect to the parties' agreement under s34(3) of the Land and [ADDRESS] 1979 are:

1. The appeal is upheld 2. An order that pursuant to section 121ZK(4)(c) of the Environmental Planning and Assessment Act 1979 (NSW), the Orders issued by the Respondent to the Applicants dated 13 October 2016 are substituted by the Order as set out in Annexure 'A' to this Agreement 3. These Orders are made pursuant to s121B (Order Number 1(a), 15 and 16) of the Environmental Planning and Assessment Act 1979 (NSW). 4. [ADDRESS] notes the parties' agreement as follows:

5. Within 6 months the applicant will submit an application to the Environmental Protection Authority ([NAME]) for the approval of a cell design with respect to the void on ML47 and ML52, and the application must be pursued diligently. ………………………. Commissioner G Brown 329721, 329742, 329731.16 Brown (C) (145 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2017