Ellis v Inner West Council

[2019] NSWLEC 1269

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ellis v Inner West Council [2019] NSWLEC 1269
Hearing dates:	Conciliation conference on 13 June 2019
Date of orders:	14 June 2019
Decision date:	14 June 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   Leave is granted for the Applicant to rely on the amended plans and materials listed in paragraph 1 of the conditions set out in Annexure A. (2)   The appeal is upheld and development consent is granted for Development Application D/2018/488 for extension to existing roof terrace at 109B Louisa Road, Birchgrove NSW 2041, subject to the conditions set out in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Kylie Ellis (First Applicant) Greg Ellis (Second Applicant) Inner West Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall & Wilcox Lawyers (Applicants) G Christmas, Apex Planning & Environment Law (Respondent)
File Number(s):	2018/332664
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant appeals the Council’s deemed refusal of a development applicant for alterations and additions to an existing roof top terrace on the residence at 109B Louisa Road Birchgrove (the Site).

2. The appeal is brought pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The proceedings were listed for hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) and I was the presiding Commissioner. At the conciliation conference held before the hearing (in accordance with s 34(1) of the LEC Act), the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves upholding the appeal and granting conditional development consent based on amended plans. The amendments are responsive to the objectors’ concerns about their loss of water views and residential amenity. They include a reduction in trafficable area of the roof terrace and the incorporation of a clear glass balustrade set back around the perimeter of the roof.

4. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

5. Accordingly, the Court orders:

1. Leave is granted for the Applicant to rely on the amended plans and materials listed in paragraph 1 of the conditions set out in Annexure A.

2. The appeal is upheld and development consent is granted for Development Application D/2018/488 for extension to existing roof terrace at 109B Louisa Road, Birchgrove NSW 2041, subject to the conditions set out in Annexure A

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (142 KB)

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