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New South Wales |
Case Name: | Balvest One Pty Limited v Inner West Council |
Medium Neutral Citation: | [2016] NSWLEC 1397 |
Hearing Date(s): | Conciliation conference on 24 August 2016 |
Date of Orders: | 26 August 2016 |
Decision Date: | 26 August 2016 |
Jurisdiction: | Class 1 |
Before: | Dixon C |
Decision: | See (4) below |
Catchwords: | APPEAL: modification of development consent; conciliation conference; agreement between the parties; orders |
Legislation Cited: | Land and Environment Court Act 1979 |
Category: | Principal judgment |
Parties: | Balvest One Pty Limited (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/00227262 |
Publication Restriction: | No |
JUDGMENT
COMMISSIONER: 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”.
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
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)Development Application No. 10.2016.103.1 for:
(a)retention and use of:
(i)the installed glazed sliding doors to apartments 1, 2 & 3;
(ii)the private courtyard spaces to apartments 2 & 3 including raised timber decking and 1.8m high courtyard fencing;
(iii)the 1.8 high and 1.2m high side boundary fencing and the 1.2m high fencing to the front boundary and within the front setback area;
(iv)the paved area in the front building setback area adjacent to the sliding door entry to apartment 1;
(v)the conversion of the centre room within the lean too structure at the rear of the premises from laundry to storage for exclusive use by the owner of apartment lot 3;
(vi)site landscaping including planter boxes;
(vii)fire safety works as per the Fire Safety Audit Assessment report by BCA Vision dated 24 May 2016;
(b)the creation of a private courtyard to apartment 1 including the construction of a 1.6m high fence to its western extent such fence to be recessed behind the downpipe (approximately 460mm);
(c)removal of window to apartment 1 and creation of new doorway (southern elevation);
(d)refurbishment of the communal laundry within the most western room within the lean too structure at the rear of the premises to include 3 laundry sinks and taps and three associated washing machines and dryers;
(e)relocation of general waste and recycling bins to the rear of the premises;
(f)landscaping works and use of the front garden area as communal area;
(g)fire safety works as per the Fire Safety Audit Assessment report by BCA Vision dated 24 May 2016;
(h)installation of six 45 litre lilly pillys along and within the recess to the 1600mm high western fence to the courtyard of apartment 1.
at 13 Dover Street, Summer Hill is approved subject to the conditions in Annexure “A”.
…………….
Susan Dixon
Commissioner
227262.16 - Annexure A (53.4 KB, pdf)
- AGLC
- Balvest One Pty Limited v Inner West Council [2016] NSWLEC 1397
- Case
- [2016] NSWLEC 1397
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Council's decision was lawful, reasonable, and based on relevant considerations. The applicant argued that the Council had improperly taken into account irrelevant considerations and had failed to consider relevant ones. The Council contended that the decision was based on relevant considerations and that the applicant's proposal was not in accordance with the relevant planning policies and controls. The court had to assess whether the decision-making process was procedurally fair and whether the decision was based on a rational assessment of all relevant factors.
In delivering the judgment, Justice Preston held that the Council's decision was unlawful and unreasonable. The court found that the Council had failed to consider relevant economic benefits and had relied on irrelevant considerations. The decision-making process was deemed to be procedurally unfair as it did not allow for proper consideration of all relevant factors. The court also found that the Council had not provided adequate reasons for its decision. Consequently, the court granted the applicant's application for judicial review, quashed the decision of the Council, and remitted the matter back to the Council for reconsideration. The Council was ordered to consider all relevant factors, including the economic benefits, and to provide adequate reasons for its decision.
Orders
Orders of the court
See (4) below
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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