193 Liverpool Road Pty Ltd v Inner West Council

[2020] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation:	193 Liverpool Road Pty Ltd v Inner West Council [2020] NSWLEC 1098
Hearing dates:	Conciliation conference on 28 February 2020
Date of orders:	05 March 2020
Decision date:	05 March 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The Applicant is granted leave to amend the application to rely on the updated Plan of Management for the Boarding House dated 24 February 2020. (2) The appeal is upheld. (3) The application to modify Development Consent No. 10.2016.65.1 granted by the Land and Environment Court on 1 March 2017 relating to 193 Liverpool Road, Ashfield, is approved, subject to the consolidated conditions of consent at Annexure ‘A’.
Catchwords:	MODIFICATION APPLICATION – increase the number of boarding house rooms – delete one basement level and provide eight car parking spaces of which one is accessible and seven are in car stackers – conciliation conference – agreement between the parties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
Category:	Principal judgment
Parties:	193 Liverpool Road Pty Limited (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Jaku (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2018/393484
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify Development Consent No. 10.2016.65.1 granted by the Land and Environment Court on 1 March 2017 (193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13) for a mixed use development comprising one retail shop, one residential apartment and 38 boarding house rooms in a part three storey, part eight storey development at 193 Liverpool Road, Ashfield (the site). The proposal is to provide a total of 43 boarding house rooms, to delete basement level 2 and to provide a total of 8 car parking spaces of which one is an accessible space and 7 are provided in a car stacker.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 February 2019. I presided over the conciliation conference.

3. 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.

4. 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 modify the development consent.

5. There is a jurisdictional prerequisite that must be satisfied before this function can be exercised, pursuant to ss 4.55(2) and (3) of the EPA Act. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted because the changes to the development do not remove a critical element of the development consent.

Orders

6. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the updated Plan of Management for the Boarding House dated 24 February 2020.

2. The appeal is upheld.

3. The application to modify Development Consent No. 10.2016.65.1 granted by the Land and Environment Court on 1 March 2017 relating to 193 Liverpool Road, Ashfield, is approved, subject to the consolidated conditions of consent at Annexure ‘A’.

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Susan O’Neill

Commissioner of the Court

Annexure A (202 KB)

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Decision last updated: 05 March 2020