Ainsworth v Inner West Council

[2017] NSWLEC 1564

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ainsworth & anor v Inner West Council [2017] NSWLEC 1564
Hearing dates:	Conciliation conference on 6 September 2017
Date of orders:	06 October 2017
Decision date:	06 October 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	MODIFICATION : modify conditions of consent for alterations and additions to existing dwelling and ancillary development; 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:	Geoff Ainsworth (First Applicant) Johanna Featherstone (Second Applicant) Inner West Council (Respondent)
Representation:	Solicitor: Mr D Briggs, D G Briggs & Associates (Applicant) Mr S Turner, Inner West Council (Respondent)
File Number(s):	2017/133935
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of application number M/2017/5 to modify Development Consent No. D/2016/190 for alterations and additions to existing dwelling and ancillary development at 27 Wharf Road, Birchgrove.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 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. The Court Act 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 Environment Court Act 1979 are:

1. The Appeal is upheld.

2. Section 96 application number M/2017/5 lodged with the Respondent on 25 January 2017 to modify Development Consent No. D/2016/190 for alterations and additions to existing dwelling and ancillary development at 27 Wharf Road, Birchgrove is determined by approving the modifications as set out in “Annexure A”.

3. As a consequence of order 2(b), Development Consent No. DA/2016/549 is now subject to the consolidated, modified conditions of development consent set out in “Annexure B”.

……………………….

Commissioner Brown

Annexure A (128 KB, pdf)

Annexure B (461 KB, pdf)