Antoun v Inner West Council

[2019] NSWLEC 1272

Land and Environment Court

New South Wales

Medium Neutral Citation:	Antoun v Inner West Council [2019] NSWLEC 1272
Hearing dates:	Conciliation conference on 27 May and 7 June 2019
Date of orders:	18 June 2019
Decision date:	18 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	See orders at [13] below
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Jamiel Antoun (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Yu (Applicant)   Solicitors: M Mantei, Planning Law Solutions (Respondent)
File Number(s):	2018/312423
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by Inner West Council (hereafter the Council) of Modification Application (MA) 201500748.02, which seeks to modify an existing consent and MA by an increase in height of the already approved garage/storage room (hereafter garage) and installation of a window in the southern elevation of the garage, on Lot Y DP 505344, also known as 20 Hopetoun Street, Petersham (hereafter the Site).

2. The site is a three storey dual occupancy development with rear garage and storage room under construction, as approved under consent 201500748 and modified under MA 201500748.01. The proposed modifications are at the rear of the site on an attached garage for Lot A, and storage room for Lot B.

3. This Class 1 appeal is made under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 27 May and 7 June 2019. I presided over the conciliation conference. There were no objectors heard at the conciliation.

5. 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. This decision is to uphold the appeal and grant consent to MA 201500748.02 which modifies consent 201500748.01.

6. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act 1979 to grant consent to the MA (201500748.02) with conditions.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A) of the EPA Act 1979, as consistency with: Marrickville Local Environmental Plan 2011 (MLEP); and Marrickville Development Control Plan 2011 (MDCP). The parties agree that the amended plans and proposed conditions of consent relate to the merits of the proposal.

8. The parties agree that the relevant provisions of the MLEP are addressed to their satisfaction by the supporting documents and amended plans to the MA under appeal. The parties have assessed that the proposed development does not contravene any development standards and specifically resolves the contentions as it relates to the height development standard (cl 4.3). The change in height of the garage satisfies the objectives of the standard.

9. Based on the amended plans, which address the pitch of the garage and supporting documents to the MA, the contentions that relate to the controls of the MDCP are resolved.

10. The parties agree that the proposed modification, which is limited to the rear portion of the site to accommodate a car stacker in the garage, does not result in further environmental impact and is substantially the same as already approved. The MA was notified consistent with the MDCP and no submissions were received during the notification period.

11. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the MA, based on the amended plans as provided in the conditions of consent, satisfies the requirements of s 4.55(1A) of the EPA Act 1979.

12. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. Leave is granted to rely on the following documents that are the subject of Modification Application No. 201500748.02

Document Reference	Document Name	Prepared by	Dated
DA16/F	Elevations – Proposed (East)	Raymond Panetta Architect	7 June 2019
DA17/I	Elevations – Proposed (South)	Raymond Panetta Architect	7 June 2019
DA18/H	Elevations – Proposed (North)	Raymond Panetta Architect	29 May 2019
DA19/F	Elevations – Proposed (West)	Raymond Panetta Architect	7 June 2019
DA20/I	Sections – Proposed (Long Section)	Raymond Panetta Architect	7 June 2019

2. The applicant is to pay the respondent costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000.00 within 28 days.

3. The appeal is upheld.

4. Modification Application No. 201500748.02 to modify garage at Lot Y DP 505344, 20 Hopetoun Street, Petersham is determined by the grant of consent, subject to the conditions at Annexure “A”.

………………………

S Bish

Commissioner of the Court

Annexure A (118 KB, pdf)

Plans (5.58 MB, pdf)

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Decision last updated: 18 June 2019