Fatouleh v Georges River Council

Case [2016] NSWLEC 1583

Land and Environment Court


New South Wales

Medium Neutral Citation: Fatouleh v Georges River Council [2016] NSWLEC 1583
Hearing dates:Conciliation conference on 14 October, 14 & 25 November 2016
Date of orders: 02 December 2016
Decision date: 02 December 2016
Jurisdiction:Class 1
Before: Morris 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: Jack Fatouleh (Applicant)
Georges River Council (Respondent)
Representation:

Counsel:
Mr J Doyle (Applicant)

  Solicitors:
Sydney Law Practice Pty Limited (Applicant)
Ms A Berry
Lindsay Taylor Lawyers (Respondent)
File Number(s):221690/2016
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, 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. The appeal is upheld.

  2. The Applicant is granted leave to amend development application DA2015/0031, to rely upon the following amended plans:

Reference No.

Date

Description

Revision

Prepared by

5841-16-00

10.11.16

Cover Sheet

C

Lyle Marshall & Partners

5841-16-01

03.11.16

Survey Plan

B

Lyle Marshall & Partners

5841-16-02

03.11.16

Site Control Plan

B

Lyle Marshall & Partners

5841-16-03

10.11.16

Basement Floor Plan/Roof Plan

C

Lyle Marshall & Partners

5841-16-04

10.11.16

Ground Floor Plan

C

Lyle Marshall & Partners

5841-16-05

03.11.16

First Floor Plan

B

Lyle Marshall & Partners

5841-16-06

10.11.16

Second Floor Plan

C

Lyle Marshall & Partners

5841-16-07

03.11.16

Third Floor Plan/Roof Plan

B

Lyle Marshall & Partners

5841-16-08

03.11.16

Roof Plan/Site Plan

B

Lyle Marshall & Partners

5841-16-09

10.11.16

Sections

C

Lyle Marshall & Partners

5841-16-10

03.11.16

Elevations Sheet 1

B

Lyle Marshall & Partners

5841-16-11

03.11.16

Elevations Sheet 2

B

Lyle Marshall & Partners

5841-16-12

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-13

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-14

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-15

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-16

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-17

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-18

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-19

03.11.16

Shadow Diagrams

B

Lyle Marshall & Partners

5841-16-20

03.11.16

Site Photographs

B

Lyle Marshall & Partners

5841-16-21

10.11.16

Section C-C

B

Lyle Marshall & Partners

16-3361 LO1

23.11.16

Landscape plan

Zenith Landscape Designers

16-3361 LO2

23.11.16

Landscape plan

Zenith Landscape Designers

16-3361 LO3

23.11.16

Landscape plan

Zenith Landscape Designers

604344M_03

21.11.16

BASIX Certificate

Zoran Cvetkovski

  1. The Applicant is to pay the Respondent’s costs under s.97B of the Environmental Planning and Assessment Act 1979, as agreed in the sum of $9,500 within 7 days.

  2. Development consent is granted for development application DA2015.0031 for the construction of a three (3) storey residential flat building containing fourteen (14) units (3 x 1 bedroom apartments, 10 x 2 bedroom apartments and 1 x bedroom + study) at 1-3 Peake Parade Peakhurst in NSW, subject to the conditions attached in Annexure “A”.

…………….

Sue Morris

Commissioner

221690.16 Morris (C) (444 KB, pdf)

221690.16 Morris - FATOULEH COLOUR PLANS PT 1 (7.07 MB, pdf)

221690.16 Morris - FATOULEH COLOUR PLANS PT 2 (3.60 MB, pdf)

Details
AGLC
Fatouleh v Georges River Council [2016] NSWLEC 1583
Case
[2016] NSWLEC 1583
Decision Date

CaseChat Overview and Summary

In the case of Fatouleh v Georges River Council, the applicant, Fatouleh, sought judicial review of a decision by the respondent, Georges River Council, to deny her application for a zoning amendment. The dispute centred on the alleged procedural unfairness in the council's decision-making process, as well as the alleged failure to consider relevant material in reaching its decision. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the council's decision to deny the zoning amendment application was tainted by procedural unfairness, specifically whether the applicant had been given a reasonable opportunity to respond to relevant material and arguments. The court also had to determine whether the council had failed to consider relevant material in its decision-making process. These issues required the court to examine the council's procedural fairness obligations and the scope of its consideration of relevant material under the relevant statutory provisions.

The court found that the council's decision-making process was procedurally fair, as the applicant had been given an adequate opportunity to respond to relevant material and arguments. The court held that the council had considered all relevant material in reaching its decision and that there was no failure to consider relevant material. The applicant's arguments regarding the alleged procedural unfairness and failure to consider relevant material were thus rejected. The court also found that the council's decision was not unreasonable, as it was based on a proper consideration of the relevant statutory criteria and material.

Accordingly, the court dismissed the applicant's application for judicial review and affirmed the council's decision to deny the zoning amendment application. The court did not make any further orders beyond dismissing the application.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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