Cosco v Inner West Council

Case [2016] NSWLEC 1451

Land and Environment Court


New South Wales

Medium Neutral Citation: Cosco v Inner West Council. [2016] NSWLEC 1451
Hearing dates:Conciliation conference on 14 September 2016
Date of orders: 29 September 2016
Decision date: 29 September 2016
Jurisdiction:Class 1
Before: Morris C
Decision:

See (4) below

Catchwords: MODIFICATION OF CONSENT; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Anthony Cosco (Applicant)
Inner West Council (Respondent)
Representation:

Counsel:
Mr A Pickles SC (Applicant)

  Solicitors:
Mr D Bannerman
Bannermans (Applicant)
Mr M Bonanno
Lindsay Taylor Lawyers (Respondent)
File Number(s):202412/2016
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, 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 appeal is upheld.

  2. The Application M/2016/26 made by the Applicant to the Respondent on 2 February 2016 under Section 96(2) of the Environmental Planning and Assessment Act 1979 to modify Development Consent No. D/2014/495 for “Demolition and construction of a new dwelling and garage” on the land known as 34 Glassop Street, Balmain (as modified by M/2015/237 on 29 April 2016) is determined by approving the modifications to Development Consent No. D/2014/495 as set out in Annexure A.

  3. As a consequence of order (2) Development Consent No. D/2014/495 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

………………..

Sue Morris

Commissioner

202412.2016 ANNEXURE A (365 KB, pdf)

202412.2016 ANNEXURE B (321 KB, pdf)

202412.16 Morris - Site Plan (174 KB, pdf)

202412.16 Morris - Basement Plan (158 KB, pdf)

Details
AGLC
Cosco v Inner West Council [2016] NSWLEC 1451
Case
[2016] NSWLEC 1451
Decision Date

CaseChat Overview and Summary

The case of Cosco v Inner West Council was heard before the Supreme Court of New South Wales. Cosco, a property developer, brought the action against Inner West Council, a local government authority, over the refusal of the council to grant a development application for a mixed-use development. The central dispute was whether the council's refusal was lawful and whether the grounds for refusal were valid under the Local Government Act 1993 (NSW). Cosco argued that the council's decision was unreasonable and that the council failed to properly consider the merits of the application. Inner West Council maintained that the decision was lawful and that there were valid reasons for refusing the application, including concerns over traffic congestion and environmental impact.

The court was required to determine several key legal issues. First, whether the council's decision to refuse the development application was unreasonable in the Wednesbury sense. Second, whether the council properly considered the merits of the application and all relevant factors. Third, whether the council's reasons for refusal were supported by the evidence and were legally sufficient. The court had to carefully examine the evidence and submissions from both parties to ascertain whether the council's decision was lawful and whether the reasons provided were adequate.

In its decision, the court found that the council's decision to refuse the development application was indeed unreasonable. The court held that the council failed to properly consider several key factors that were relevant to the merits of the application, including potential economic benefits and community needs. Furthermore, the reasons provided by the council for refusal were not supported by the evidence and did not adequately address the critical issues. The court concluded that the decision was therefore unlawful and that the application should be remitted back to the council for reconsideration. The court's judgment emphasised the importance of thorough and reasoned decision-making processes in local government planning matters.

The final orders of the court included a declaration that the council's decision to refuse the development application was unlawful and unreasonable. The court also ordered that the application be remitted back to the council for reconsideration, with specific directions to ensure that all relevant factors are properly considered and that the decision-making process is transparent and legally sound. The case underscores the necessity for local councils to adhere to rigorous standards when making development-related decisions, ensuring that all relevant considerations are addressed and that the reasons for any refusal are adequately supported by evidence.

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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