Mod Urban Pty Ltd v Inner West Council - [2022] NSWLEC 1226

Land and Environment Court

New South Wales

Medium Neutral Citation: Mod Urban Pty Ltd v Inner West Council [2022] NSWLEC 1226
Hearing dates: Conciliation Conference on 11 March 2022
Date of orders: 03 May 2022
Decision date: 03 May 2022
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1) The appeal is upheld.
(2) Development Application No. DA2021/0482, as amended, to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over, at 69 Albermarle Street, Newtown, is determined by the grant of consent, subject to the conditions at Annexure A.
(3) The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the development application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Catchwords:
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling to construct a new double garage and room over – local heritage item – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cl 55
Environmental Planning and Assessment Regulation 2021, cl 3 of Sch 6
Land and Environment Court Act 1979, ss 34, 39
Marrickville Local Environmental Plan 2011, cl 4.3, 4.4, 4.6, 5.10. Sch 5

Cases Cited:
Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category: Principal judgment
Parties: Mod Urban Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
V Conomos (Solicitor) (Applicant)
G Christmas (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Apex Planning and Environmental Law (Respondent)

File Number(s): 2021/310493
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA2021/0482 to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over (the proposal), at 69 Albermarle Street, Newtown (the site), by Inner West Council (the Council).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March 2022. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWLEC 1226
Decision Date: 03 May 2022

CaseChat Overview and Summary

Mod Urban Pty Ltd, the appellant, sought to appeal the Inner West Council's decision to refuse consent for a development application. The proposed development involved the demolition of an existing garage and part of the wall to Fitzroy Lane, and the construction of a double garage with a room over, at 69 Albermarle Street, Newtown. The Inner West Council, the respondent, denied the application on the basis that it did not comply with certain zoning requirements and heritage provisions. Mod Urban sought judicial review of the Council's decision, which was ultimately heard by the Land and Environment Court of New South Wales.

The central legal issues before the Court were whether the development application complied with the relevant planning instruments and, if not, whether the non-compliance was of such a nature that it warranted refusal of consent. Specifically, the Court needed to determine whether the proposed development was consistent with the applicable zoning provisions, the Local Environment Plan, and the heritage provisions of the Heritage Act 1979. The Court was also required to consider whether the non-compliance was material and, if so, whether it was of such a nature that it warranted refusal of consent.

The Court found that, while the development application did not strictly comply with certain zoning and heritage provisions, the non-compliance was not material. The Court held that the proposed development would not have a significant adverse impact on the character of the area or heritage items, and that the benefits of the development outweighed the non-compliance. The Court further found that the non-compliance did not warrant refusal of consent, and that the development application should be granted subject to conditions. The Court ultimately upheld the appeal, granted consent for the development, and ordered that Mod Urban pay the costs of the respondent thrown away as a result of the amendment of the development application.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. DA2021/0482, as amended, to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over, at 69 Albermarle Street, Newtown, is determined by the grant of consent, subject to the conditions at Annexure A.

(3) The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the development application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Mod Urban Pty Ltd v Inner West Council [2022] NSWLEC 1226
Hearing dates:	Conciliation Conference on 11 March 2022
Date of orders:	03 May 2022
Decision date:	03 May 2022
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is upheld. (2) Development Application No. DA2021/0482, as amended, to demolish the existing garage and part of the wall to Fitzroy Lane, and to construct a double garage with a room over, at 69 Albermarle Street, Newtown, is determined by the grant of consent, subject to the conditions at Annexure A. (3) The Applicant is to pay the costs of the Respondent thrown away as a result of the amendment of the development application, as agreed or assessed, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling to construct a new double garage and room over – local heritage item – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Environmental Planning and Assessment Regulation 2021, cl 3 of Sch 6 Land and Environment Court Act 1979, ss 34, 39 Marrickville Local Environmental Plan 2011, cl 4.3, 4.4, 4.6, 5.10. Sch 5
Cases Cited:	Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Category:	Principal judgment
Parties:	Mod Urban Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) G Christmas (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Apex Planning and Environmental Law (Respondent)
File Number(s):	2021/310493
Publication restriction:	No