Moweno Pty Ltd v Inner West Council

[2019] NSWLEC 1509

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moweno Pty Ltd v Inner West Council [2019] NSWLEC 1509
Hearing dates:	Conciliation conference on 2 September 2019
Date of orders:	24 October 2019
Decision date:	24 October 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A (2)   The appeal is upheld. (3)   Development application D201800240 seeking alterations and additions to the existing building and change of use is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – amended design – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	Moweno Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2019/9578
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) by the applicant against the deemed refusal of its development application DA201800240. The development application seeks approval for alterations and additions to the existing building and change of use to a boarding house.

2. On 4 June 2018, the Applicant lodged a development application with Inner West Council. Following the expiration of the deemed refusal period, the Applicant appealed to the Court. Through the conciliation process, the parties have agreed an amended design for the subdivision.

3. 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.

4. 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 9 September 2019.

5. 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 to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

6. 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 proposed development is permissible in the B6 Enterprise Zone under Marrickville Local Environmental Plan 2011 and complies with the relevant development standards.

2. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 1050197M in compliance with the instrument.

7. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The final orders to give effect to the parties’ agreement under s 34(3) of the Court Act are:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 1 in Annexure A.

2. The appeal is upheld.

3. Development application D201800240 seeking alterations and additions to the existing building and change of use is approved subject to the conditions in Annexure A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (92.2 KB, pdf)

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