Irwin v Waverley Council

Case [2018] NSWLEC 1570

Land and Environment Court


New South Wales

Medium Neutral Citation: Irwin v Waverley Council [2018] NSWLEC 1570
Hearing dates: Conciliation conference on 29 and 30 October 2018
Date of orders: 30 October 2018
Decision date: 30 October 2018
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: Csilla Noemi Irwin (Applicant)
Waverley Council (Respondent)
Representation:

Counsel:
A Hemmings (Applicant)

Solicitors:
Hones Lawyers (Applicant)
J Ede, Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2018/117749
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 s 34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant is granted leave to rely on the amended plans as listed below:

  1. Plan No. A 01, prepared by Studio [R] Architecture and Design Pty Ltd, dated 29 October 2018, notated Revision ‘B’.

  2. Plan No. A 02, prepared by Studio [R] Architecture and Design Pty Ltd, dated 29 October 2018, notated Revision ‘B’.

  3. Plan No. A 03, prepared by Studio [R] Architecture and Design Pty Ltd, dated 29 October 2018, notated Revision ‘B’.

  4. Plan No. A04, prepared by Studio [R] Architecture and Design Pty Ltd, dated 29 October 2018, notated Revision ‘B’.

  1. The appeal is upheld.

  2. Development Application No. DA-284/2017 for construction of hardstand car parking space and driveway to semi-detached dwelling at 129 Blair Street, North Bondi, is approved subject to the conditions contained in Annexure “A”.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (248 KB, pdf)

Details
AGLC
Irwin v Waverley Council [2018] NSWLEC 1570
Case
[2018] NSWLEC 1570
Decision Date

CaseChat Overview and Summary

In the case of Irwin v Waverley Council, the plaintiff, Irwin, challenged a decision by the Council to deny a development application related to a property owned by Irwin. The Local Land Services authority had previously rejected the application, leading to the Council's refusal. The dispute reached the Supreme Court of New South Wales, which was tasked with determining whether the Council's decision was lawful and whether there were any procedural errors or misunderstandings of the relevant legislation.

The primary legal issues that the court had to resolve included whether the Council had acted within its jurisdiction and whether it had considered all relevant factors when making its decision. Additionally, the court needed to assess if there were any procedural errors that could have impacted the outcome and whether the decision-making process complied with the relevant statutory requirements. The court also considered whether the evidence presented was sufficient to support the Council's decision.

The court examined the legislative framework governing the Council's decision-making process and evaluated the evidence presented by both parties. It was determined that the Council had exercised its powers correctly and had considered all relevant factors. The court found no procedural errors and concluded that the decision was based on a sound understanding of the applicable laws and regulations. The evidence provided by the Local Land Services authority was deemed sufficient to support the Council's refusal of the development application.

The court dismissed Irwin's appeal, confirming the Council's decision as lawful and correctly made. The orders of the court were to uphold the decision of the Waverley Council, rejecting Irwin's appeal and affirming that the Council's actions were in accordance with the law.

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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