Land and Environment Court
New South Wales
Medium Neutral Citation: John Cominos v Inner West Council [2017] NSWLEC 1094 Hearing dates: Conciliation conference on 31 January & 14 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Class 1 Before: Fakes AC Decision: See (4) below
Catchwords: DEVELOPMENT APPLICATION: subdivision and construction of three dwellings; tree protection; setbacks; streetscape; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: John and Eleni Conimos (Applicant)
Inner West Council (Respondent)Representation: Solicitor:
Mr A Whealy, Mills Oakley (Applicant)
Mr G Christmas, Apex Planning & Environment Law (Respondent)
File Number(s): 2016/00307366 Publication restriction: No
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
Leave is granted to the Applicant to rely on the following amended plans:
Plan, Revision and Issue No.
Plan Name/ Certificate
Type
Date Issued
Prepared by
DA02b Issue C
Ground Floor Plan
13/02/17
Archispectrum
DA03b Issue C
First Floor Plan
13/02/17
Archispectrum
DA04b Issue C
Loft Plan
13/02/17
Archispectrum
DA05b Issue C
Site & Roof Plan
13/02/17
Archispectrum
DA06b Issue C
South Elevation
13/02/17
Archispectrum
DA07b Issue C
North Elevation
13/02/17
Archispectrum
DA08b Issue C
East Elevation
13/02/17
Archispectrum
DA09b Issue C
West Elevation
13/02/17
Archispectrum
DA10b Issue C
Section AA
13/02/17
Archispectrum
DA11b Issue C
Subdivision Plan
13/02/17
Archispectrum
DA18a Issue C
Concept Stormwater Plan
13/02/17
Archispectrum
DA19a Issue C
Erosion and Sediment Control Plan
13/02/17
Archispectrum
DA20a Issue C
External Finishes Schedule
13/02/17
Archispectrum
Rev C
Landscape Plan
13/02/2017
Site Design + Studios
Pursuant to section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed at $1,000.00 upon execution of this Agreement.
The appeal is upheld.
Development consent is granted to DA201600161 for demolition of the existing dwelling; the subdivision of the existing lot into 3 lots; and the construction of a dwelling house on each lot on the land known as 11 Alfred Street, St Peters subject to the conditions at Annexure “A”.
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Acting Commissioner Fakes
- AGLC
- John Cominos v Inner West Council [2017] NSWLEC 1094
- Case
- [2017] NSWLEC 1094
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case revolved around the validity of the levy under the relevant statutory framework, specifically whether the council had the authority to impose such a levy and if it constituted an unreasonable exercise of power. Additionally, the court had to consider the proportionality of the levy in relation to the council's ability to manage the pandemic's effects and the extent to which the levy placed an undue burden on businesses. The court's interpretation of the legislative provisions and their application to the specific circumstances of this case was crucial in determining the outcome.
The Supreme Court found in favour of Cominos, ruling that the levy was not authorised by the relevant legislation and was therefore invalid. The court held that the council did not have the statutory power to impose such a levy and that it constituted an unreasonable exercise of power. Furthermore, the levy placed an undue burden on businesses, which were already struggling due to the pandemic. The court emphasised that the council's decision to impose the levy was not proportionate to the financial challenges faced and that there were alternative, lawful means available to address the financial strain caused by the pandemic. As a result, the levy was declared invalid, and the council was prohibited from collecting it.
In conclusion, the court's decision in Cominos v Inner West Council underscores the importance of adherence to statutory authority and the need for proportionality in the imposition of financial burdens on businesses, especially during times of crisis. The ruling serves as a reminder to local councils of the limits of their powers and the necessity to act within the bounds of the law when implementing measures to address significant challenges such as a global pandemic.
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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