Australian Fitness Management Pty Ltd v Georges River Council

[2019] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australian Fitness Management Pty Ltd v Georges River Council [2019] NSWLEC 1259

Hearing dates:

Conciliation conference on 20 May 2019

Date of orders:

11 June 2019

Decision date:

11 June 2019

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

 

(1)   Leave is granted to the Applicant to rely on the amended architectural plans set out in condition 1 of Annexure A.

 

(2)   The appeal is upheld.

 (3)   Development consent is granted to Development Application No. DA2018/0129 for the fit out and use as a fitness studio (recreation facility (indoor)) opening 24 hours, 7 days and associated signage on Lot 2 in Deposited Plan 1176421, known as 125 Boundary Road, Peakhurst, subject to the conditions of consent in 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:

Australian Fitness Management Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation:

Solicitors:
M Jaku, Jaku Legal (Applicant)
S Wilson, Georges River Council (Respondent)

File Number(s):

2018/319985

Publication restriction:

No

Judgment

1. COMMISSIONER: Australian Fitness Management (the Applicant) has appealed the deemed refusal by Georges River Council (the Respondent) of its development application (DA2018/0129) for the fit-out and use of a two storey industrial unit, with upper level mezzanine floor, for the purposes of a fitness studio, at 125 Boundary Road, Peakhurst (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court’s jurisdiction.

3. 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 20 May 2019, and I presided over the conciliation conference.

4. 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 the Court upholding the appeal and granting consent to the development application, subject to conditions.

5. 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.

6. There are no jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. 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.

8. 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.

9. The Court orders:

1. Leave is granted to the Applicant to rely on the amended architectural plans set out in condition 1 of Annexure ‘A’.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA2018/0129 for the fit out and use as a fitness studio (recreation facility (indoor)) opening 24 hours, 7 days, and associated signage, on Lot 2 in Deposited Plan 1176421, known as 125 Boundary Road, Peakhurst, subject to the conditions of consent in Annexure ‘A’.

…………………………..

Michael Chilcott

Commissioner of the Court

Annexure A (436 KB)

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Decision last updated: 11 June 2019