E and R Property Pty Ltd v Inner West Council

[2018] NSWLEC 1100

Land and Environment Court

New South Wales

Medium Neutral Citation:	E & R Property Pty Ltd v Inner West Council [2018] NSWLEC 1100
Hearing dates:	Conciliation conference on 28 February 2018
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Class 1
Before:	Smithson 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:	E & R Property Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: Marc Jaku, Jaku Legal (Applicant) Mark Bonanno, Inner West Council (Respondent)
File Number(s):	2017/230286
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. Leave is granted to the Applicant to rely on the amended plans set out in Annexure A.

2. The written request to vary the floor space ratio standard set out in “Justification under Clause 4.6 of Leichardt Local Environmental Plan 2013 – Exceptions to Development Standards” prepared by Mersonn Pty Ltd dated December 2017 pursuant to clause 4.6 of Leichhardt Local Environmental Plan 2013 is upheld.

3. Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs that are thrown away as a result of amending the development application in the amount of $12,000, within 28 days.

4. The appeal is upheld.

5. Development consent is granted to Development Application D/2017/161 for the demolition of existing structures and construction of a mixed-use strata building with commercial tenancy, 41 residential units and basement parking on Lots 3 and 4 Section 40 in DP 814 and Lot 50 in DP 456784, known as 1 - 13 Parramatta Road, Annandale, subject to the conditions of consent in Annexure A.

……………………….

Jenny Smithson

Commissioner of the Court

Annexure A (212 KB, pdf)