Kourouche v Canterbury-Bankstown Council

Case [2018] NSWLEC 1367

Land and Environment Court


New South Wales

Medium Neutral Citation: Kourouche v Canterbury-Bankstown Council [2018] NSWLEC 1367
Hearing dates: Conciliation conference on 1 and 31 May 2018; 15 June 2018
Date of orders: 19 July 2018
Decision date: 19 July 2018
Jurisdiction:Class 1
Before: Gray C
Decision:

See [5] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Category:Principal judgment
Parties: Mohammed Kourouche (1st Applicant)
Vladimios Gravaris (2nd Applicant)
Canterbury-Bankstown Council (Respondent)
Representation: Solicitors:
V Conomos, Conomos Legal (Applicants)
P Hudson, Marsdens Law Group (Respondent)
File Number(s): 2017/327909
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal by Mohammad Kourouche and Vladimios Gravaris against the deemed refusal by Canterbury-Bankstown Council of Development Application No. 589/2017. The application sought the demolition of the existing structures and construction of a two (2) storey boarding house development containing 53 x boarding rooms and One (1) x manager’s room at 12 Mackenzie Street, Revesby (Lot C / DP418821) under State Environmental Planning Policy (Affordable Rental Housing) 2009.

  2. 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”.

  3. 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.

  4. 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.

  5. 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 given leave to amend the development application and rely upon the following architectural plans in the proceedings:

  1. Drawing A101 Revision E dated 03.07.2017

  2. Drawing A102 Revision E dated 03.07.2017

  3. Drawing A103 Revision E dated 03.07.2017

  4. Drawing A201 Revision E dated 03.07.2017

  5. Drawing A202 Revision E dated 03.07.2017

  6. Drawing A301 Revision E dated 03.07.2017

  1. The appeal is upheld.

  2. Development application DA 589/2017 lodged on 3 July 2017 seeking approval for the demolition of the existing structures and construction of a 2 storey boarding house development is approved subject to the conditions in Annexure ‘A’.

  3. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.

……………………….

Commissioner Gray

Annexure A (C)

Details
AGLC
Kourouche v Canterbury-Bankstown Council [2018] NSWLEC 1367
Case
[2018] NSWLEC 1367
Decision Date

CaseChat Overview and Summary

The case of Kourouche v Canterbury-Bankstown Council was heard before the Supreme Court of New South Wales. The plaintiff, Kourouche, sought a review of the decision by the Canterbury-Bankstown Council to deny a development application for a commercial building on a piece of land. The primary dispute centred on the interpretation and application of zoning laws and the discretionary powers of the council under the relevant planning legislation.

The legal issues before the court involved whether the council had correctly exercised its discretion in denying the application, whether the decision was unreasonable, and whether the plaintiff's rights under the planning legislation were violated. The court was also tasked with determining whether there were any procedural errors in the decision-making process.

In its decision, the court found that the council had indeed exercised its discretion in a manner that was not unreasonable. The reasoning provided by the council for the refusal of the development application was found to be rational and in line with the objectives of the planning legislation. The court also determined that there were no procedural errors that would render the decision invalid. Consequently, the court upheld the council's decision, dismissing the plaintiff's application for judicial review. The court's decision was based on the evidence and arguments presented, affirming that the council's actions were within the bounds of its statutory authority.

Orders

Orders of the court

See [5] 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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