Lombardi v Bayside Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lombardi v Bayside Council [2020] NSWLEC 1397

Hearing dates:

Conciliation conference on 19 June 2020

Date of orders:

27 August 2020

Decision date:

27 August 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The orders of the Court are:

(1) The Applicant is granted leave to rely on the amended plans listed in condition 2 of the conditions at Annexure A to this agreement.

(2) The Applicant is to pay the Respondent’s costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $10,000 within 28 days of these orders.

(3) The appeal is upheld.

(4) Development application no. DA 2019/250, as amended, for the demolition of existing structures and construction of a two-storey boarding house comprising 8 single rooms at 9 Fleet Street, Carlton is approved subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of a new boarding house – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

Environmental Planning and Assessment Regulation 2000

Rockdale Local Environmental Plan 2011

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Category:

Principal judgment

Parties:

Daniele Lombardi (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Gough (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)

Solicitors:
Storey & Gough Lawyers (Australia) (Solicitor) (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2020/97347

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Daniele Lombardi (Applicant) who is appealing the actual refusal of their development application, DA 2019/250, by Bayside Council. The application seeks consent for demolition of existing structures and construction of a two-storey boarding house at 9 Fleet Street, Carlton (Lot 1 DP 921700).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 19 June 2020. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is that the appeal is upheld, subject to the conditions of consent annexed to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was lodged with the consent of the owner of the…