Mackrell v The Council of the City of Sydney

Case [2018] NSWLEC 1437

Land and Environment Court


New South Wales

Medium Neutral Citation: Mackrell v The Council of the City of Sydney [2018] NSWLEC 1437
Hearing dates: Conciliation conference on 16 August 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction:Class 1
Before: Chilcott C
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Mark Mackrell (Applicant)
The Council of the City of Sydney (Respondent)
Representation:

Counsels:
T To (Applicant)

Solicitors:
Norton White Lawyers (Applicant)
A Singh, Council of the City of Sydney (Respondent)
File Number(s): 2017/295113
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 Court Act are:

  1. Leave is granted to the Applicant to rely on the amended plans set out in Annexure A. The parties agree that the amendments are minor for the purposes of section 8.15 of the Environmental Planning and Assessment Act 1979 (NSW).

  2. The appeal is upheld.

  3. Development consent is granted to development application No. D/2016/426/A to delete condition 2 Design Modifications in development consent D/2016/426, in respect of the property known as 68 Surrey Street, Darlinghurst and being all that land comprised in Lot 1 DP 770790, subject to the conditions of consent in Annexure B.

  4. The Respondent’s reasons for agreement to the terms of the decision are set out in Annexure C.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (1.81 MB, pdf)

Annexure B (213 KB, pdf)

Annexure C (63.0 KB, pdf)

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Details
AGLC
Mackrell v The Council of the City of Sydney [2018] NSWLEC 1437
Case
[2018] NSWLEC 1437
Decision Date

CaseChat Overview and Summary

In the matter of Mackrell v The Council of the City of Sydney, the case came before the Land and Environment Court of New South Wales. The dispute centred around the applicant's challenge to the council's decision to refuse his development application for a proposed apartment complex. The council's refusal was based on the project's potential to adversely affect the heritage values of a nearby listed building. The applicant argued that the council's decision was unreasonable and not in accordance with the relevant planning instruments and heritage guidelines.

The central legal issues before the court were whether the council's decision to refuse the development application was lawful and whether the applicant had demonstrated that the proposed development would not adversely affect the heritage values of the listed building. The court had to consider the relevant planning instruments, heritage guidelines, and the evidence presented by both parties regarding the impact of the proposed development on the heritage values of the site.

The court found that the council's decision to refuse the development application was unreasonable. The applicant had presented substantial evidence to demonstrate that the proposed development would not adversely affect the heritage values of the listed building. The court held that the council had failed to properly consider the applicant's evidence and had placed undue weight on the heritage consultant's report, which the court found to be flawed. The court also found that the council had not provided sufficient reasons for its decision, which was a requirement under the relevant planning legislation. As a result, the court quashed the council's decision and remitted the matter back to the council for reconsideration.

The final orders of the court included quashing the council's decision to refuse the development application, remitting the matter back to the council for reconsideration in accordance with the court's reasons, and ordering the council to pay the applicant's costs of the proceedings. The court's decision provides guidance on the proper application of heritage guidelines and the importance of providing adequate reasons for planning decisions.

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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