Aydan Two Pty Ltd v Inner West Council

Case [2020] NSWLEC 1122

Land and Environment Court


New South Wales

Medium Neutral Citation: Aydan Two Pty Ltd v Inner West Council [2020] NSWLEC 1122
Hearing dates: Conciliation conference on 6 March 2020
Date of orders: 17 March 2020
Decision date: 17 March 2020
Jurisdiction:Class 1
Before: O’Neill C
Decision:

The Court orders that:
(1) The applicant is granted leave to amend the application to rely on the amended plans listed in condition 3 of the conditions of consent at Annexure A.
(2) The appeal is upheld.
(3) Development Application No. D/2019/367 for alterations and additions to an existing industrial building at 42-48 John Street, Leichhardt, is approved, subject to the conditions of consent at Annexure A.

Catchwords: DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Aydan Two Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:

Counsel:
A Stafford (Applicant)
S Turner (Solicitor) (Respondent)

  Solicitors:
King & Wood Mallesons (Applicant)
Inner West Council (Respondent)
File Number(s): 2019/368225
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2019/367 for alterations and additions to an existing industrial building (the proposal) at 42-48 John Street, Leichhardt (the site) by Inner West Council (the Council).

  2. The proposal includes internal changes, façade improvements, a new awning, altering an existing driveway to the John Street frontage and introducing a new driveway crossing on the John Street frontage.

  3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 6 March 2020. 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.

  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.

Orders

  1. The orders of the Court are:

  1. The applicant is granted leave to amend the application to rely on the amended plans listed in condition 3 of the conditions of consent at Annexure A.

  2. The appeal is upheld.

  3. Development Application No. D/2019/367 for alterations and additions to an existing industrial building at 42-48 John Street, Leichhardt, is approved, subject to the conditions of consent at Annexure A.

____________­­­­­­_____

Susan O’Neill

Commissioner of the Court

Annexure A (72.2 KB)

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Details
AGLC
Aydan Two Pty Ltd v Inner West Council [2020] NSWLEC 1122
Case
[2020] NSWLEC 1122
Decision Date

CaseChat Overview and Summary

Aydan Two Pty Ltd sought leave to amend their application for development approval of alterations and additions to an existing industrial building, while Inner West Council opposed the application. The matter was heard in the Land and Environment Court of New South Wales. The dispute centred around the procedural fairness of the council’s refusal to approve the development application, and whether the applicant had a legitimate expectation that it could rely on amended plans submitted prior to the refusal. The applicant argued that the council had breached natural justice by refusing to consider the amended plans.

The court examined whether the applicant had a legitimate expectation that the amended plans would be considered, and whether the council’s refusal to do so amounted to a breach of natural justice. The court also considered whether the applicant had been procedurally unfair in not considering the amended plans and whether the applicant had a right to have the amended plans considered as part of the development application process. Ultimately, the court found that the applicant had a legitimate expectation that the amended plans would be considered and that the council had breached natural justice by refusing to do so.

The court held that the applicant was granted leave to amend the application to rely on the amended plans. The court found that the council’s refusal to consider the amended plans was procedurally unfair and amounted to a breach of natural justice. The court also found that the applicant had a legitimate expectation that the amended plans would be considered, and that the council had failed to consider this expectation. The appeal was upheld, and the development application was approved subject to the conditions of consent at Annexure A.

Orders

Orders of the court

The Court orders that:

(1) The applicant is granted leave to amend the application to rely on the amended plans listed in condition 3 of the conditions of consent at Annexure A.

(2) The appeal is upheld.

(3) Development Application No. D/2019/367 for alterations and additions to an existing industrial building at 42-48 John Street, Leichhardt, is approved, subject to the conditions of consent at Annexure A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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