Land and Environment Court
New South Wales
Medium Neutral Citation: Catania v Inner West Council [2018] NSWLEC 1325 Hearing dates: Conciliation conference on 7, 21 June 2018 Date of orders: 29 June 2018 Decision date: 29 June 2018 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: Alexander Catania (Applicant)
Inner West Council (Respondent)Representation: Solicitors:
V Conomos, Conomos Legal (Applicant)
G Christmas, Apex Law (Respondent)
File Number(s): 2017/385887 Publication restriction: No
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:
Leave is granted to the Applicant to rely on the following amended architectural and landscape plans:
Plan No and Revision
Plan type
Prepared by
Date
DA100 Revision G
Basement 2 plan
BKA Architecture
21/06/18
DA101 Revision G
Basement 1 plan
BKA Architecture
21/06/18
DA102 Revision I
Ground floor plan
BKA Architecture
21/06/18
DA103 Revision H
Level 1 plan
BKA Architecture
15/06/18
DA104 Revision H
Level 2 plan
BKA Architecture
15/06/18
DA105 Revision H
Level 3 plan
BKA Architecture
15/06/18
DA106 Revision H
Level 4 plan
BKA Architecture
15/06/18
DA107 Revision H
Level 5 plan
BKA Architecture
15/06/18
DA108 Revision G
Roof plan
BKA Architecture
15/06/18
DA200 Revision G
Proposed Elevations
BKA Architecture
15/06/18
DA201 Revision G
Proposed Elevations
BKA Architecture
15/06/18
DA202 Revision C
Streetscape elevation
BKA Architecture
15/06/18
DA300 Revision H
Proposed section
BKA Architecture
21/06/18
DA301 Revision B
Section – front façade
BKA Architecture
15/06/18
DA302 Revision A
Section – rear façade
BKA Architecture
15/06/18
DA700 Revision D
Finishes Schedule
BKA Architecture
15/06/18
LPDA18-52 Revision D
Landscape plan page 1
Conzept Landscape Architects
14.06.18
LPDA18-52 Revision B
Landscape Plan page 2
Conzept Landscape Architects
14.0618
LPDA18-52 Revision C
Landscape Plan page 3
Conzept Landscape Architects
14.06.18
Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $1,800.00 upon execution of this Agreement.
The appeal is upheld.
Development consent is granted to DA201700552 for the demolition of the existing buildings; consolidation of 3 lots into 1 lot; and the construction of a 6 storey mixed use development comprising basement car parking for 26 vehicles, a ground floor commercial space, 4 x ground floor serviced apartments and 28 x residential apartments above on the land known as 108-112 Old Canterbury Road, Lewisham subject to the conditions at Annexure “A”.
……………………….
Michael Chilcott
Commissioner of the Court
Annexure A (173 KB, pdf)
- AGLC
- Catania v Inner West Council [2018] NSWLEC 1325
- Case
- [2018] NSWLEC 1325
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the council had the authority to refuse the development application based on the potential impact on the surrounding environment and community. The appellant argued that the refusal was unreasonable and not in accordance with the law, while the respondent maintained that the refusal was justified due to the potential adverse effects on the local environment and community. The court was required to determine whether the council's decision was lawful and reasonable in the context of the planning and environmental legislation.
In reaching its decision, the court examined the relevant planning and environmental legislation and the evidence presented by both parties. The court found that the council had exercised its discretion reasonably and in accordance with the law. The council had considered all relevant factors, including the potential environmental impacts and the character of the local community, and had provided adequate reasons for its decision. The court also found that the appellant had not demonstrated that the council's decision was unreasonable or based on an error of law. Therefore, the appeal was dismissed, and the decision of the Inner West Council was upheld.
The court's final order was that the appeal be dismissed, with the appellant to pay the respondent's costs of the appeal. This decision reinforces the importance of councils properly considering all relevant factors when making decisions under planning and environmental legislation.
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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