Elaine Richardson Architect v Inner West Council

[2019] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elaine Richardson Architect v Inner West Council [2019] NSWLEC 1508
Hearing dates:	Conciliation conference on 17 July 2019; 28 August 2019
Date of orders:	29 October 2019
Decision date:	29 October 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The applicant is granted leave to rely on the amended plans that are listed at Annexure “A”. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amended plans in the amount of $10,245.00, within 28 days of the making of these orders, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979. (3)   The appeal is upheld. (4)   Development consent is granted to development application No. DA201800259 for the construction of a new outdoor dining area to the rear of the site at the corner of Railway Street and Carrington Lane, demolition of a section of existing wall, erection of a new acoustic wall and new fence and gate, and enclosed smoking area facing Terminus Street, subject to the conditions set out at Annexure “B”.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Elaine Richardson Architect (Applicant) Inner West Council (Respondent)
Representation:	Counsel: D Manca (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent)   Solicitors: Las Lawyers & Consultants (Applicant) Sparke Helmore (Respondent)
File Number(s):	2018/355417
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal against the Council’s deemed refusal of development application DA201800259, which sought consent for a rear outdoor dining area at ground level and a kid’s play area at lower ground level at the White Cockatoo Hotel at 30 Terminus Street, Petersham (Site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 July 2019 and 28 August 2019. I was the presiding Commissioner.

3. At the conference, which was held onsite, a number of local residents addressed the process and articulated their concerns with the development plans annexed to the Class 1 Application. In response, the Applicant sought an adjournment of the conference so that it could submit to the Council some amended plans and a revised waste management plan. On the basis of these amendments to the proposed development, and after a consideration of the matters in s 4.15(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), I am now advised that the parties have agreed that all of the contentions raised in respect of the original proposal have been resolved or are resolved by the conditions of consent. Noting, in particular that the jurisdictional matter raised by cl 7 of State Environmental Planning Policy No 55 – Remediation of Land is not a matter of concern having regard to the Council’s aerial mapping facility and site usage records which indicate that the Site is unlikely to have been used for a potentially contaminating activity.

4. In short, the development (being a pub – a type of food and drink premises) within the B1 – Neighbourhood Centre zoning under the Marrickville Local Environmental Plan 2011 is not only permissible but in the Council’s consideration now acceptable after a merit assessment.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In this case, the parties’ decision involves the Court exercising the function under s 8.7 of the EPA Act to grant conditional consent to the development application. As I satisfied of that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, I make the following orders:

1. The applicant is granted leave to rely on the amended plans that are listed at Annexure “A”.

2. The applicant is to pay the respondent’s costs thrown away as a result of the amended plans in the amount of $10,245.00, within 28 days of the making of these orders, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development consent is granted to development application No. DA201800259 for the construction of a new outdoor dining area to the rear of the site at the corner of Railway Street and Carrington Lane, demolition of a section of existing wall, erection of a new acoustic wall and new fence and gate, and enclosed smoking area facing Terminus Street, subject to the conditions set out at Annexure “B”.

……………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (14.1 KB, pdf)

Annexure B (131 KB, pdf)

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Decision last updated: 30 October 2019