Fitzgerald v Inner West Council

[2017] NSWLEC 1283

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fitzgerald v Inner West Council [2017] NSWLEC 1283
Hearing dates:	Conciliation Conference on 2 June 2017
Date of orders:	05 June 2017
Decision date:	05 June 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: construction of a double garage with attic studio; 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:	Paul Fitzgerald (Applicant) Inner West Council (Respondent)
Representation:	Mr M. Jaku, Jaku Legal (Applicant) Mr J. Strati, Inner West Council (Respondent)
File Number(s):	2017/83257
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2017/18 for the construction of a double garage with attic studio above on Lot 29 in DP 666695, known as 12 Reuss Street, Birchgrove.

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 granted leave to rely upon amended plans referred to in Condition 1 of the conditions of consent annexed hereto and marked “Annexure A”.

2. The Appeal is upheld.

3. Development Consent is granted to Development Application D/2017/18 for the construction of a double garage with attic studio above on Lot 29 in DP 666695, known as 12 Reuss Street, Birchgrove, subject to the conditions of consent annexed hereto and marked “Annexure A”.

4. The Applicant’s clause 4.6 submissions in relation to the development standards pursuant to clauses 4.3A(3)(a), 4.3A(3)(b) and 4.4 of Leichhardt Local Environmental Plan 2013 are considered acceptable.

…………….

G Brown

Commissioner of the Court

82357.17 (C) (394 KB, pdf)