Ghazi Al Ali Architect Pty Ltd v Ku-ring-gai Council

Case [2017] NSWLEC 1543

Land and Environment Court


New South Wales

Medium Neutral Citation: Ghazi Al Ali Architect Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1543
Hearing dates: Conciliation conference on 7 September 2017
Date of orders: 28 September 2017
Decision date: 28 September 2017
Jurisdiction:Class 1
Before: Chilcott 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: Ghazi Al Ali Architect Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Solicitors:
Mr V Conomos, Conomos Legal (Applicant)
Mr A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2017/135551
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 make, 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 Applicant is given leave to amend the development application and rely upon the following plans in the proceedings:

  1. Drawing A0000 Revision C dated 13/9/2017

  2. Drawing A1150 Revision C dated 13/9/2017

  3. Drawing A1201 Revision C dated 13/9/2017

  4. Drawing A1202 Revision C dated 13/9/2017

  5. Drawing A1203 Revision C dated 13/9/2017

  6. Drawing A1204 Revision B dated 13/9/2017

  7. Drawing A1205 Revision B dated 13/9/2017

  8. Drawing A1206 Revision C dated 13/9/2017

  9. Drawing A1210 Revision C dated 13/9/2017

  10. Drawing A1301 Revision C dated 13/9/2017

  11. Drawing A1302 Revision C dated 13/9/2017

  12. Drawing A1303 Revision C dated 13/9/2017

  13. Drawing A1304 Revision C dated 13/9/2017

  14. Drawing A1401 Revision C dated 13/9/2017

  15. Drawing A1402 Revision C dated 13/9/2017

  16. Drawing A2030 Revision C dated 13/9/2017

  17. Drawing A2201 Revision C dated 13/9/2017

  18. Drawing A2202 Revision C dated 13/9/2017

  19. Drawing SW01 Revision A dated 9/3/2017

  20. Drawing SW02 Revision A dated 9/3/2017

  21. Drawing SW03 Revision A dated 9/3/2017

  22. Drawing SW04 Revision A dated 9/3/2017

  23. Drawing SW05 Revision A dated 9/3/2017

  24. Drawing SW06 Revision A dated 9/3/2017

  25. Drawing SW07 Revision A dated 9/3/2017

  26. Drawing SW08 Revision A dated 9/3/2017

  1. The appeal is upheld.

  2. Development application DA0095/17 lodged on 22 March 2017 seeking approval for the demolition existing structures and construction of a mixed use development comprising 17 units (4 of which are nominated affordable rental housing), 1 commercial premises, 1 shop, basement parking, and associated landscaping is approved subject to the conditions in Annexure A.

……………………….

Commissioner Chilcott

Annexure A (C) (323 KB, pdf)

Details
AGLC
Ghazi Al Ali Architect Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1543
Case
[2017] NSWLEC 1543
Decision Date

CaseChat Overview and Summary

The parties in this case were Ghazi Al Ali Architect Pty Ltd, an architectural firm, and Ku-ring-gai Council, a local government body. The dispute arose out of a planning approval process concerning a property in the Ku-ring-gai Council area. The architectural firm challenged the council’s decision to refuse a development application under the Environmental Planning and Assessment Act 1979 (NSW). The case was heard in the Supreme Court of New South Wales, Land and Environment Division.

The primary legal issues before the court involved the interpretation of the planning approval process and the application of relevant planning laws. Specifically, the court had to determine whether the council's refusal to grant development consent was lawful and whether the council had acted within its statutory powers. Additionally, the court examined the appropriateness of the reasons provided by the council for its decision.

In its reasoning, the court analysed the statutory framework governing the planning approval process and the criteria for assessing development applications. It also considered the evidence and submissions from both parties. The court found that the council had acted within its statutory powers and that its decision was based on legitimate planning considerations. The council had provided adequate reasons for its decision, aligning with the requirements of the Act. Consequently, the court upheld the council's decision and dismissed the architectural firm's appeal.

The final orders of the court included dismissing the appeal brought by Ghazi Al Ali Architect Pty Ltd and affirming the council's decision to refuse the development application. The court also ordered that the costs of the appeal be borne by the appellant.

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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