Grippi v Inner West Council

[2019] NSWLEC 1593

Land and Environment Court

New South Wales

Medium Neutral Citation:	Grippi v Inner West Council [2019] NSWLEC 1593
Hearing dates:	Conciliation conference on 23 October 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application D2018/368 for part demolition/reduction of size of existing laundry, repositioning of existing roller door wholly within No. 31 Junior Street Leichhardt and associated landscaping is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013
Category:	Principal judgment
Parties:	Daniel Grippi (Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Simington (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Lindsay Taylor Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2019/79140
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Council’s refusal of Development Application No. D/2018/368 (as amended) for the part demolition/reduction of the size of an existing laundry and repositioning of an existing roller door on land at 31 Junior Street, Leichardt and associated landscaping (the Site).

2. The background facts are set out in the applicant’s Statement of Facts and Contentions (SOFAC) filed with the Court on 28 March 2019 and the Council’s reply filed on 17 July 2019.

3. In accordance with the Court’s usual practice, a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), was convened between the parties on 23 October 2019. I presided over the conciliation.

4. During the conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involves the Court exercising the functions under s 4.16 of the EPA Act to grant development consent to the applicant’s amended application on a conditional basis.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the decision is one that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In this instance, the parties have explained how the jurisdictional prerequisites have been satisfied and provided me with a short statement which records their agreed position about the jurisdictional matters.

6. Relevantly, the statement records that the adjoining owner at No. 29 Junior Street has given consent to allow the applicant to carry out specified demolition works to remove encroachments on his land. After those demolition works and the completion of the works in the amended DA, the subject of this appeal, the Council accepts that development will comply with the following development standards in Leichhardt Local Environmental Plan 2013 (LLEP 2013):

1. In respect of landscaped area under cl 4.3A(3)(a)(i) where a minimum of 14.685m² (15% of site area) is required, the development provides for 14.78m²; and thereby is compliant;

2. In respect site coverage under cl 4.3A(3)(b) where a maximum of 60% is required, the development provides 58.22%; and is thereby compliant;

3. In respect of floor space area under cl 4.4(2B)(c) where a maximum floor space of ratio of 0.8 applies, the development provides 0.67 and is thereby compliant.

7. The parties further agree that the development otherwise meets the relevant requirements in Part 5 and 6 of LLEP 2013 namely:

1. an acid sulphate soils management plan is not required for the works under cl 6.1 on the Class 5 land as the works will not be likely to lower the water table below 1 metre Australian Height Datum on any adjacent Class 1, 2, 3 or 4 land;

2. the considerations required to be given under cl 6.2 are satisfactory;

3. the matters of which the consent authority is required to be satisfied under cl 6.4 are so satisfied subject to the site drainage and stormwater control conditions proposed to be imposed on the consent.

8. Having regard to all of the above matters, I am satisfied the jurisdictional prerequisites to the proper exercise of the power to approve the Amended Development Application have been met.

9. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

10. The Court orders:

1. The appeal is upheld.

2. Development Application D2018/368 for part demolition/reduction of size of existing laundry, repositioning of existing roller door wholly within No. 31 Junior Street Leichhardt and associated landscaping is approved subject to the conditions in Annexure A.

………………………………

S Dixon

Senior Commissioner of the Court

Annexure A (150 KB, pdf)