Byrne v The Council of the City of Sydney

[2019] NSWLEC 1099

Land and Environment Court

New South Wales

Medium Neutral Citation:	Byrne v The Council of the City of Sydney [2019] NSWLEC 1099
Hearing dates:	Conciliation conference on 11 February 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See orders at [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Category:	Principal judgment
Parties:	David Anthony Byrne (Applicant) The Council of the City of Sydney (Respondent)
Representation:	Solicitors: G Hartley, Hartley Solicitors (Applicant) M Flick, Council of the City of Sydney (Respondent)
File Number(s):	2018/203028
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the refusal of its development application RD/2017/1624/A. As amended the application seeks consent for alterations and additions to the existing terrace house at 52 Lander Street, Darlington (Lot 3 DP547284).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 11 February 2019. Following the conciliation an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The property is zoned R1 General Residential Zone under the Sydney Local Environmental Plan 2012 (LEP 2012). Attached dwellings are permitted with consent within the zone. The development proposed by the application is for alterations and additions to an attached dwelling and is permissible development within the zone.

2. The proposed development complies with the development standards within the environmental planning instruments that apply to the site, including the development standards in LEP 2012.

3. The subject site is located within the Golden Grove Conservation Area (C 18) and is identified as a ‘Contributory’ Building. Pursuant to cl 5.10(4) of LEP 2012, I have considered the effect of the proposed development on the heritage significance of the conservation area. I am satisfied that the development will have no adverse impacts on the character of the contributory building or wider heritage conservation area.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The applicant is granted leave to amend the application and rely on the plans listed under Condition 1 of the conditions of consent in Annexure ‘A’. Copies of the plans are at Annexure ‘B’;

2. For the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979, Applicant is to pay the Respondents costs in the order of $2,000 within 28 days.

3. The appeal is upheld; and

4. Development application number RD/2017/1624/A for alterations and additions to the existing dwelling at 52 Lander Street, Darlington is approved subject to the conditions in Annexure ‘A’.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (235 KB, pdf)

Annexure B (2.73 MB, pdf)

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Decision last updated: 21 March 2019