Ahtypis v Inner West Council

[2018] NSWLEC 1629

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ahtypis v Inner West Council [2018] NSWLEC 1629
Hearing dates:	13 November 2018
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Class 1
Before:	Maston AC
Decision:	See orders at [6] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Chris Ahtypis (First Applicant) Efy Ahtypis (Second Applicant) Inner West Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall & Wilcox Lawyers (Applicants) M Bonnano, Inner West Council (Respondent)
File Number(s):	2018/150636
Publication restriction:	No

Judgment

COMMISSIONER:

1. These are Class 1 proceedings of the jurisdiction of the Land and Environment Court of NSW which have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The statutory function being exercised by the Court is the determination of an appeal from the decision of Inner West Council in which Inner West Council refused development consent for the applicant’s Development Application No. DA 2018 00042 (“DA”). The DA is for the demolition of an existing commercial building and the construction of a new mixed use building comprising ground floor retail unit, 9 apartments, and basement parking at 412-414 Illawarra Road, Marrickville, being the whole of the land in Certificate of Title Folio Identifier – Lot 18 DP 1733.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 13 November 2018. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the upholding of the appeal and the granting of development consent to the DA subject to conditions.

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 grant consent to the development application subject to conditions.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

6. The Court orders:

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure “A”.

2. The Applicant is to pay the Respondent’s costs in the amount of $6,000 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW) within 28 days.

3. The Appeal is upheld.

4. Development Application No. DA 2018 00042, being for the demolition of existing commercial building and the construction of a new mixed use building comprising ground floor retail unit, 9 apartments, and basement parking at 412-414 Illawarra Road, Marrickville, is approved, subject to the conditions set out in Annexure “A”.

…………………………….

J Maston

Acting Commissioner of the Court

Annexure A (181 KB, pdf)

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