Emag Apartments Pty Ltd v Inner West Council

[2019] NSWLEC 1647

Land and Environment Court

New South Wales

Medium Neutral Citation:	Emag Apartments Pty Ltd v Inner West Council [2019] NSWLEC 1647
Hearing dates:	Conciliation conference held on 22 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Court orders: (1) The applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 4 in Annexure A. (2) The applicant is to pay the respondent’s section 8.15(3) costs thrown away in these proceedings in the agreed amount of $5,500 within 28 days of the date of these orders. (3) The appeal is upheld. (4) Development application DA201900028 seeking the demolition of existing structures and construction of a residential flat building over basement car parking is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – infill affordable rental housing – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009
Category:	Principal judgment
Parties:	Emag Apartments Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2019/102093
Publication restriction:	No

Judgment

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Inner West Council of Development Application DA201900028 which seeks consent for the construction of a residential flat building containing basement car parking, affordable units and associated landscaping works on land known as 5 George Street, Marrickville.

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 22 November 2019. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. That agreement was based on amended plans prepared by the applicant, which, according to the council’s experts, addressed the contentions in the case.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

5. I have formed this state of satisfaction because the development is permissible in the R1 General Residential Zone, and, pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 is a form of development that is consistent with the provisions of that policy.

6. As agreed by the parties, the amended plans take into consideration potential impacts to residents of adjoining properties and allow for the retention of trees. Conditions of consent have been imposed that reflect the agreed position of the experts and go to address the concerns of the objectors raised at the site view.

7. As the parties’ decision is a decision that the Court could have made in the proper exercise of is functions, I am required under s34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court orders:

1. The applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 4 in Annexure A.

2. The applicant is to pay the respondent’s section 8.15(3) costs thrown away in these proceedings in the agreed amount of $5,500 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Development application DA201900028 seeking the demolition of existing structures and construction of a residential flat building over basement car parking is approved subject to the conditions in Annexure A.

…………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (216 KB, pdf)

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