Kaur v Inner West Council

[2019] NSWLEC 1564

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kaur v Inner West Council [2019] NSWLEC 1564
Hearing dates:	Conciliation conference on 15 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) Leave is granted to the Applicants to amend the development application and rely on the amended plans listed in condition 5 of Annexure ‘A’. (2) The applicants are to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $4,500 payable within 28 days of this agreement. (3) The appeal is upheld. (4) Development consent is granted to development application DA201800317 for demolition of an existing dwelling and associated structures, removal of existing trees and construction of two semi-detached dwellings with off-street parking at 28 Northwood Street, Camperdown is approved subject to the conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPEAL – Conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011
Category:	Principal judgment
Parties:	Surinder Kaur (Applicant) Inner West Council (Respondent)
Representation:	Counsel: G Hartley (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitor: Hartley Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2019/31983
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns an application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Inner West Council (the Respondent) of Development Application DA201800317 (the DA) which seeks consent for the demolition of existing improvements and construct 2 x 2 part 3 storey dwelling houses on each lot on land known as 28 Northwood Street, Camperdown.

2. The site is legally described as containing Lot 7 Section 4 of Deposited Plan 3821 and Lot 8 Section 4 of Deposited Plan 3821, being located on the eastern side of Northwood Street, between Salisbury Road and Federation Road, Camperdown.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 15 November 2019. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 15 November 2019.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The Respondent advises that the DA was the subject of public submissions objecting to the grant of consent and are required to be considered pursuant to s 4.15(1)(d)(e).

7. For the following reasons, I am satisfied that the amended plans prepared by John Greenwood + Associates on behalf of the Applicant sufficiently address the matters that I am required to consider, and on which the parties have reached agreement:

1. The site is within the R2 Low Density Residential zone pursuant to the Marrickville Local Environmental Plan 2011, in which attached dwellings are permitted with consent.

2. The objectives of the R2 zone are in the following terms:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for multi dwelling housing and residential flat buildings but only as part of the conversion of existing industrial and warehouse buildings.

•  To provide for office premises but only as part of the conversion of existing industrial and warehouse buildings or in existing buildings designed and constructed for commercial purposes.

•  To provide for retail premises in existing buildings designed and constructed for commercial purposes.

3. As trees identified on the plans as T3 and T6 partly encroach on to the property at No 26 Northwood Street, Camperdown owners consent is required for their removal. I have read the letter prepared by the owner of No 26 Northwood Street and I am satisfied that the required consent has been obtained.

4. The Respondent has re-notified residents, and considered submissions arising. I have read the submissions which I consider to have been satisfactorily addressed through the amended plans, including amendments to the form and height of the roofline which has reduced the impact resulting from shadows generated by the proposal.

8. 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.

9. 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.

10. The Court orders:

1. Leave is granted to the Applicants to amend the development application and rely on the amended plans listed in condition 5 of Annexure ‘A’.

2. The applicants are to pay the Respondent’s costs thrown away as a result of the amendment of the application in the amount of $4,500 payable within 28 days of this agreement.

3. The appeal is upheld.

4. Development consent is granted to development application DA201800317 for demolition of an existing dwelling and associated structures, removal of existing trees and construction of two semi-detached dwellings with off-street parking at 28 Northwood Street, Camperdown is approved subject to the conditions in Annexure ‘A’.

…………………………

T Horton

Commissioner of the Court

Annexure A (403 KB)

Plans (468 KB)

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Decision last updated: 21 November 2019