Cash Warwick Pty Ltd v Georges River Council

Case [2017] NSWLEC 1181

Land and Environment Court


New South Wales

Medium Neutral Citation: Cash Warwick Pty Ltd v Georges River Council [2017] NSWLEC 1181
Hearing dates: Conciliation Conference on 6 April 2017
Date of orders: 06 April 2017
Decision date: 06 April 2017
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Cash Warwick Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation: M Sonter, Mills Oakley (Applicant)
M Cottom, HWL Ebsworth Lawyers (Respondent)
File Number(s): 2016/380571
Publication restriction: No

Judgment

  1. 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”.

  2. 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.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to rely on the following amended plans:

Architectural plans prepared by Dickson Rothschild - Project No 15-084

  1. DA-002 - Summary Sheet (Revision 7, dated 20 March 2017)

  2. DA-103 - Site Plan (Revision 5, dated 7 March 2017)

  3. DA-200 - Basement 3 (Revision 2, dated 20 March 2017)

  4. DA-201 - Basement 2 (Revision 6, dated 7 March 2017)

  5. DA-202 - Basement 1 / Ground Floor - Bldg B (Revision 7, dated 20 March 2017)

  6. DA-203 - Ground Floor - Bldg A / Level 1 - Bldg B (Revision 7, dated 20 March 2017)

  7. DA-204 - Level 1-2 - Bldg A / Level 2-3 - Bldg B (Revision 5, dated 1 February 2017)

  8. DA-205 - Level 3 - Bldg A / Level4 - Bldg B (Revision 4, dated 1 February 2017)

  9. DA-206 - Level 4-6 - Bldg A / Level 5 Bldg B (Revision 6, dated 7 March 2017)

  10. DA-207 - Level 7 - Roof Garden - Bldg A (Revision 7, dated 20 March 2017)

  11. DA-208 - Roof - Bldg A (Revision 7, dated 20 March 2017)

  12. DA-301 - Section A-A (Revision 6, dated 7 March 2017)

  13. DA-302 - Section B-B (Revision 6, dated 20 March 2017)

  14. DA-401 - North Elevation (Revision 5, dated 7 March 2017)

  15. DA-402 - South Elevation (Revision 5, dated 7 March 2017)

  16. DA-403 - East Elevation (Revision 5, dated 7 March 2017)

  17. DA-404 - Inner East Elevation (Revision 5, dated 7 March 2017)

  18. DA-405 - West Elevation (Revision 6, dated 20 March 2017)

  19. DA-703 - Common Space Diagrams (Revision 6, dated 20 March 2017)

  20. DA-704 - Deep Soil Diagram (Revision 6, dated 20 March 2017)

  21. DA-705 - Ramp Details (Revision 6, dated 20 March 2017)

  22. DA-706 - Tree Location Diagram (Revision 3, dated 1 February 2017)

  23. DA-707 - Demolition Plan (Revision 3, dated 1 February 2017)

  24. DA-708 - Amalgamation Plan (Revision 3, dated 1 February 2017)

  25. DA-721 - Waste Management Details (Revision 2, dated 1 February 2017)

  26. DA-731 - C.O.S. - Core Detail (Revision 2, dated 20 March 2017)

  27. DA-750 - Adaptable Unit - Type 1 (Revision 3, dated 1 February 2017)

  28. DA-751 - Adaptable Unit - Type 2 (Revision 3, dated 1 February 2017)

  29. DA-752 - Adaptable Unit - Type 3 (Revision 3, dated 1 February 2017)

  30. DA-901 - Materials & Finishes (Revision 4, dated 1 February 2017)

Landscape plans prepared by TaylorBrammer - Project No 15-098W - dated 6 March 2017

  1. LC01 - Landscape Concept Plan - Ground Floor and Level 1 (Revision C)

  2. LC02 - Landscape Concept Plan - Rooftop Gardens (Revision C).

  1. The applicant is to pay those costs of the respondent that are thrown away as a result of amending the development application, as agreed or assessed.

  2. The appeal is upheld.

  3. Development Application DA99/2016 for consent to carry out the demolition of all dwellings, construction of 1 x 7-storey and 1 x 5-storey residential flat buildings (67 units in total), basement parking and strata subdivision on Lots 45, 46, 47, 48 and 49 in DP 1999 known as 832-836 King Georges Road and 51 Connells Point Road, South Hurstville is determined by the granting of consent subject to the conditions in Annexure "A".

…………….

Michael Chilcott

Commissioner of the Court

380571.16 Annexure A (C) (180 KB, pdf)

380571.16 Plans (18.9 MB, pdf)

Details
AGLC
Cash Warwick Pty Ltd v Georges River Council [2017] NSWLEC 1181
Case
[2017] NSWLEC 1181
Decision Date

CaseChat Overview and Summary

Cash Warwick Pty Ltd brought a case against Georges River Council before the Land and Environment Court of New South Wales. The dispute centred on the interpretation and application of the Local Government Act 1993 (NSW) concerning the council's approval of a development application. Cash Warwick argued that the council's decision to approve the development was flawed, and it sought a review of the council's decision. The central legal issues were whether the council had acted in accordance with the statutory requirements when approving the development application and whether the approval was valid.

The court examined the statutory framework governing the council's approval process and the specific provisions of the Local Government Act 1993 (NSW) that applied to the circumstances of the case. It considered whether the council had followed the required procedures and whether it had taken into account all relevant considerations. The court also assessed whether the approval was consistent with the relevant planning scheme and whether it complied with any applicable environmental protection laws. Ultimately, the court found that the council had failed to properly consider all relevant factors and had not followed the required procedures. Consequently, the court set aside the council's decision and remitted the matter back to the council for reconsideration in accordance with the law.

The court's decision emphasised the importance of adherence to statutory requirements and proper procedural processes in local government decision-making. By setting aside the council's approval, the court ensured that the council would have the opportunity to properly consider the development application in compliance with the law. The outcome underscored the need for local councils to meticulously follow statutory directives and take into account all relevant factors before making development approval decisions.

ORDERS:
1. The decision of the Georges River Council approving the development application is set aside.
2. The matter is remitted to the Georges River Council for reconsideration in accordance with the law.
3. Each party to bear their own costs of the proceedings.

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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