Armenco Pty Ltd v Inner West Council

[2019] NSWLEC 1386

Land and Environment Court

New South Wales

Medium Neutral Citation:	Armenco Pty Ltd v Inner West Council [2019] NSWLEC 1386
Hearing dates:	Conciliation conference on 2 July 2019
Date of orders:	20 August 2019
Decision date:	20 August 2019
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 amended documentation listed in condition 1 of the consolidated conditions of consent at Annexure A. (2)   The appeal is upheld. (3)   Modification application DA201400470.01 to amend Development Consent DA201400470 for a residential flat building is approved, subject to the consolidated conditions of consent at Annexure A.
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:	Armenco Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: S Gadiel, Mills Oakley (Applicant) G Christmas, Apex Planning and Environment Law (Respondent)
File Number(s):	2018/352922
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No. DA201400470.01 for amendments to an approved residential flat building (the proposal) at 10, 12 and 14 Arthur Street, Marrickville (the site) by Inner West Council (the Council).

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 has been held on 2 July 2019. I have 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. This decision involved amending the proposal.

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 modification application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55 of the EPA. 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 and before that consent as originally granted was modified, because the amended development remains a residential flat building that is part six and part seven storeys, as originally approved and the building footprint is generally the same. The height and relationship of the building to surrounding land remains generally the same.

6. 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.

7. 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.

8. The Court orders:

1. The Applicant is granted leave to amend the application to rely on the amended documentation listed in condition 1 of the consolidated conditions of consent at Annexure A.

2. The appeal is upheld.

3. Modification application DA201400470.01 to amend Development Consent DA201400470 for a residential flat building is approved, subject to the consolidated conditions of consent at Annexure A.

……………………….

Susan O’Neill

Commissioner of the Court

Annexure A (360 KB, pdf)

Architectural Drawings (5.55 MB, pdf)

********