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New South Wales |
Case Name: | Milestone (Aust) Pty Limited v Inner West Council |
Medium Neutral Citation: | [2016] NSWLEC 1457 |
Hearing Date(s): | Conciliation conference on 27 September 2016 |
Date of Orders: | 29 September 2016 |
Decision Date: | 29 September 2016 |
Jurisdiction: | Class 1 |
Before: | Dickson C |
Decision: | See [6] below |
Catchwords: | DEVELOPMENT APPEAL - s97(1) against deemed refusal - conciliation conference - agreement between the parties - orders |
Legislation Cited: | Environmental Planning and Assessment Act 1979 |
Category: | Principal judgment |
Parties: | Milestone (Aust) Pty Limited (Applicant) |
Representation: | Counsel: |
File Number(s): | 2016/00212037 |
Publication Restriction: | No |
JUDGMENT
COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of development application (D/2015/734) for the substantial demolition of the rear of the existing dwelling, alternations and additions, construction of a basement, tree removal, remediation, pool and site landscaping at 118 Louisa Road Birchgrove.
The appeal was subject to mandatory conciliation on 27 September 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). During the conciliation conference, 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 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".
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.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties' agreement are:
(1)The Applicant is granted leave to rely upon the amended plans contained in Annexure A;
(2)The written request made pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 to vary the 'floor space ratio' is accepted;
(3)The appeal in respect of the proposed development at 118 Louisa Rd Birchgrove, is upheld;
(4)Development application D/2015/734 lodged for the partial demolition of the rear of the existing dwelling and construction of a three storey dwelling above a basement level containing a swimming pool and associated site works, is approved subject to conditions contained in Annexure B.
………………
D M Dickson
Commissioner
212037.16 - Annexure B (160 KB, pdf)
- AGLC
- Milestone (Aust) Pty Limited v Inner West Council [2016] NSWLEC 1457
- Case
- [2016] NSWLEC 1457
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to determine were whether the Council's decision was lawful and whether it adhered to the planning scheme and relevant policies. Specifically, the court had to consider whether the Council had properly exercised its discretion in refusing the development approval and whether there was any material error in the assessment of the application. Additionally, the court needed to assess whether the decision was made in accordance with the relevant statutory provisions and whether it was open to the Council to make such a decision.
The court began by examining the statutory framework and relevant planning policies that governed the decision-making process. It found that the Council had acted within its statutory powers and followed the correct procedure. The court also considered the evidence presented and the reasoning provided by the Council in its decision. After a thorough review, the court determined that the Council's decision was not unreasonable, arbitrary, or based on an error of law. The court held that the Council had properly exercised its discretion and that the decision was in accordance with the planning scheme and relevant policies. The court dismissed Milestone's application for judicial review.
The court's final orders were that Milestone's application for judicial review be dismissed, and that Milestone pay the Council's costs of the proceeding. The court found that the Council's decision was lawful and that Milestone had not demonstrated any grounds upon which the decision could be set aside.
Orders
Orders of the court
See [6] 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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