Maistry v Inner West Council

Case [2018] NSWLEC 1432

Land and Environment Court


New South Wales

Medium Neutral Citation: Maistry v Inner West Council [2018] NSWLEC 1432
Hearing dates: Conciliation conference on 22 June 2018 and 31 July 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction:Class 1
Before: Dixon SC
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Anandh Maistry (Applicant)
Inner West Council (Respondent)
Representation: Solicitors:
A Whealy, Mills Oakley (Applicant)
G Christmas, Apex Planning & Environment Law (Respondent)
File Number(s): 2017/376001
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 Land and Environment Court Act 1979 are:

  1. Leave is granted to the Applicant to rely on the following amended architectural plans:

Plan No

Revision

Plan type

Prepared by

Date

1.1

C

Site & Analysis

Benedict Design

13/08/2018

1.2

C

Ground Floor

Benedict Design

13/08/2018

1.3

C

First Floor

Benedict Design

13/08/2018

1.4

C

Roof

Benedict Design

13/08/2018

1.5

C

Existing Ground Floor

Benedict Design

13/08/2018

1.6

C

Existing First Floor

Benedict Design

13/08/2018

2.1

C

Section AA + BB

Benedict Design

13/08/2018

2.2

C

Section CC

Benedict Design

13/08/2018

3.1

C

Elevations

Benedict Design

13/08/2018

3.2

C

North Elevations

Benedict Design

13/08/2018

3.3

C

South Elevations

Benedict Design

13/08/2018

3.4

C

East + West Elevations

Benedict Design

13/08/2018

5.1

C

Perspectives & Finishes

Benedict Design

13/08/2018

  1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs agreed of $1,500.00 upon execution of this Agreement.

  2. The appeal is upheld.

  3. Development consent is granted to DA17.2017.168.1 for the demolition of the existing garages; alterations and additions to the existing residential flat building including the provision of two new dwellings with associated parking on land known as 122 Victoria Street, Ashfield subject to the conditions at Annexure “A”.

……………………….

Susan Dixon

Senior Commissioner of the Court

Annexure A (395 KB, pdf)

Plans (3.15 MB, pdf)

Details
AGLC
Maistry v Inner West Council [2018] NSWLEC 1432
Case
[2018] NSWLEC 1432
Decision Date

CaseChat Overview and Summary

The case of Maistry v Inner West Council involved the appellant, Maistry, challenging a decision made by the Inner West Council to deny a development application. The development application sought permission to construct a new building on land in Balmain East. The dispute was heard in the Land and Environment Court of New South Wales and subsequently appealed to the Supreme Court of New South Wales. The appellant argued that the council's decision was unreasonable and that there were procedural errors in the decision-making process.

The central legal issues revolved around whether the council's decision was unreasonable in the Wednesbury sense, and whether there were procedural errors in the decision-making process. The appellant contended that the council failed to properly consider relevant environmental and planning factors and that the decision-making process was flawed. The respondent, the Inner West Council, argued that the decision was reasonable and based on appropriate consideration of all relevant factors.

The court found that the council's decision was not unreasonable. The judges concluded that the council had properly exercised its discretion and had considered all relevant factors. The court held that the council's decision was not flawed by procedural errors and that the appellant's claims of unreasonableness were unfounded. The court further found that the appellant had not demonstrated that the council had failed to consider relevant environmental and planning factors.

The court dismissed the appeal, affirming the council's decision. The judges emphasised that the council had a wide discretion in planning matters and that the court would not lightly interfere with such decisions. The court concluded that the council's decision was lawful and that the appeal should be dismissed. The court ordered that the costs of the appeal be paid by the appellant.

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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