Filmer Architects Pty Limited v Inner West Council

[2017] NSWLEC 1171

Land and Environment Court

New South Wales

Medium Neutral Citation:	Filmer Architects Pty Limited v Inner West Council [2017] NSWLEC 1171
Hearing dates:	Conciliation conference on 27 & 31 March 2017
Date of orders:	03 April 2017
Decision date:	03 April 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPEAL under s97(1) against refusal of application for new boundary fence - heritage conservation area - conciliation conference - agreement between the parties- orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Filmer Architects Pty Limited (Applicant) Inner West Council (Respondent)
Representation:	Solicitor: Mr M Driscoll, BCP Lawyers & Consultants (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/291715
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the refusal of an modification application. The application proposes the retention of a solid brick boundary fence, on the Kingston Street frontage of 10 Crescent Street Haberfield, in lieu of the timber fence originally approved by Council.

2. 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”.

3. 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.

4. 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.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is given leave to amend the development application by substituting the following plans as the plans relied upon for the purposes of the development application:

Architectural Plans and Documents
Drawing No.	Dated	Prepared By
DA02 Revision F	29 March 2017	Filmer Architects Pty Limited

2. The appeal is upheld.

3. Section 96 modification application DA10.2013.206.2 is approved to modify Development Consent DA10.2013.206.1 (the development consent) as follows:

1. Amend Condition A(1) to read as follows:

A(1)   Approved plans stamped by Council

The development must be carried out only in accordance with the plans and specifications set out on drawing numbers:-

DA00 Rev C   25 October 2013

DA01 Rev B   26 September 2013

DA02 Rev F   27 March 2017

DA03 Rev B   26 September 2013

DA04 Rev B   26 September 2013

and any supporting documentation received with the application, except as amended by the conditions specified hereunder.

2. Insert Condition B(1) as follows:

B(1)   Fence return

The fence return between the Kingston Street boundary and the side of the house adjacent to the front fence is to be of the same height and construction as the fence on the Kingston Street boundary and is to be in accordance with condition H4.

3. Insert Condition G(2) as follows:

G(2)   As built survey

A survey is to be provided to the satisfaction of Council’s Manager Development Services, Ashfield confirming the location of all piers, gates and the timber fence on and near the Kingston Street boundary prior to the issue of an occupation certificate. The timber paling fence is not to encroach on Council’s road reserve.

4. Insert condition G(3) as follows:

G(3)   Pool safety fencing

The boundary fence is not approved as a pool safety barrier. A pool safety barrier is to be installed and certification as to the adequacy of this pool safety barrier is to be provided to the PCA prior to the issue of an occupation certificate.

5. Insert Condition H(4) as follows:

H(4)   Boundary fence

The fence timbers including all posts, rails, and trim shall not be painted. The fence timbers will either remain untreated natural timber or be stained a mid-to-dark grey to resemble unpainted, weathered hardwood. The existing steel gate posts shall be painted to match the fence timbers. The gates (vehicle gates and side entrance gate) are to be painted in the dark trim colour of the house (dark red, dark green, dark brown or dark grey). 

4. As a consequence of Order 2(d) the development consent is now subject to the consolidated modified conditions of development consent set out in Annexure “A” to these orders.

…………….

D M Dickson

Commissioner of the Court

291715.16 Dickson (C) (244 KB, pdf)

291715.16 Dickson - Plans (229 KB, pdf)