Cowan v Inner West Council

[2017] NSWLEC 1696

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cowan v Inner West Council [2017] NSWLEC 1696
Hearing dates:	Conciliation conference on 26 October 2017
Date of orders:	04 December 2017
Decision date:	04 December 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; alterations and additions; existing heritage item; new residential units; amended plans; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Gary Cowan (Applicant) Inner West Council (Respondent)
Representation:	Solicitor: Ms E Fleming, Swaab Attorneys (Applicant) Mr M Bonanno, Inner West Council (Respondent)
File Number(s):	2017/00153873
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97 of the Environmental Planning and Assessment Act 1979, against Council’s refusal of development application number D/2016/391. The application seeks approval for internal alterations to the existing hotel, excavation to the existing basement, conversion of the upper floor of the hotel into a residential dwelling and construction of two new residential dwellings. The development is proposed at 31 Cameron Street, Birchgrove.

2. 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”.

3. 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.

4. 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.

5. 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 Applicant be given leave to rely upon the following amended material:

Drawing No. and Issue	Drawing Title	Prepared by	Date of Plan
DA 01, Issue E	Proposed Site Plan	Connor & Solomon Architects	10 November 2017
DA02, Issue E	Proposed Basement Floor Plan	Connor & Solomon Architects	10 November 2017
DA03, Issue E	Proposed Ground Floor Plan	Connor & Solomon Architects	10 November 2017
DA04, Issue E	Proposed First Floor Plan	Connor & Solomon Architects	10 November 2017
DA05, Issue E	Proposed Second Floor Plan	Connor & Solomon Architects	10 November 2017
DA06, Issue E	Proposed Cross Section AA	Connor & Solomon Architects	10 November 2017
DA07, Issue E	Proposed Section BB	Connor & Solomon Architects	10 November 2017
DA08, Issue E	Proposed Short Street Elevation	Connor & Solomon Architects	10 November 2017
DA09, Issue E	Proposed South (Rear) Elevation	Connor & Solomon Architects	10 November 2017
DA10, Issue E	Proposed Cameron Street Elevation	Connor & Solomon Architects	10 November 2017
DA17, Issue E	Waste Management Plan	Connor & Solomon Architects	10 November 2017
729236M_02	BASIX Certificate	Green Rate	November 2017
Not applicable	Conservation Works Schedule, Revision 3	DFP Planning consultants	10 November 2017
29303SBlet, Rev 1	Geotechnical Assessment	JK Geotechnics	9 November 2017
NE219	Hazardous Materials Survey	Geotesta Pty Ltd	25 October 2017
8YMVOL9JQS	Nationwide Energy Rating Scheme Certificate	NatHERS	10 November 2017
F84TMP9LSE	Nationwide Energy Rating Scheme Certificate	NatHERS	10 November 2017
6WTGG7I9XY	Nationwide Energy Rating Scheme Certificate	NatHERS	10 November 2017

3. The Applicant’s clause 4.6 written request to vary the landscaped areas for residential accommodation in zone R1 is upheld.

4. The Applicant’s clause 4.6 written request to vary the floor space ratio is upheld.

5. The Applicant is to pay the Respondents costs under section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

6. Development consent is granted to D/2016/391 for the partial demolition of an existing hotel, construction of two residential dwellings, conversion of the upper floor of the hotel into a residential dwelling, strata subdivision, excavation to the basement level and insertion of a whisky bar and internal alterations on Lot 1 DP 75122 (known as 31 Cameron Street Birchgrove), subject to conditions in Annexure “A”.

…………….

D M Dickson

Commissioner of the Court

Annexure A (C) (566 KB, pdf)