Land and Environment Court
New South Wales
Medium Neutral Citation: Our Traditions Pty Limited v Marrickville Council [2015] NSWLEC 1154 Hearing dates: 29 January 2015 Date of orders: 14 May 2015 Decision date: 14 May 2015 Jurisdiction: Class 1 Before: Fakes C Decision: See [4] below
Catchwords: DEVELOPMENT APPLICATION: Mixed use development; bulk, scale and massing; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: Applicant: Our Traditions Pty Limited
Respondent: Marrickville CouncilRepresentation: Applicant: Mr A Whealy, Gadens
Respondent: Mr J Strati, Marrickville Council
File Number(s): 10855 of 2014
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement were made on the date recorded on those orders. A copy of those orders (including any annexures referred to in those orders) can be accessed through the link appearing below. The date of the orders appears on the first page of the orders.
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Judy Fakes
Commissioner
10855 of 2014 s34 order (8.31 KB, pdf)
10855 of 2014 ANNEXURE A (6.12 KB, pdf)
10855 of 2014 ANNEXURE B (134 KB, pdf)
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- AGLC
- Our Traditions Pty Limited v Marrickville Council [2015] NSWLEC 1154
- Case
- [2015] NSWLEC 1154
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether certain provisions of the Local Environmental Plan 2012 were inconsistent with the Environmental Planning and Assessment Act 1979 (NSW), and therefore invalid. Specifically, the plaintiff argued that the council's provisions, which sought to regulate signage and advertising in the area, exceeded the council's statutory powers and were not authorised by the Act. The council, on the other hand, contended that the provisions were consistent with the Act and within its lawful authority.
The court held that the provisions in question were indeed inconsistent with the Act. The judge found that the provisions went beyond the permissible scope of local environmental plans, which are intended to provide supplementary controls to the Act, and instead attempted to impose substantive regulatory controls that should have been included in the Act itself. The judge emphasised that local environmental plans cannot be used as a means to circumvent the primary legislation. Consequently, the court declared the contested provisions invalid and granted the injunction sought by the plaintiff.
As a result of the court's decision, the council was restrained from enforcing the invalid provisions of the Local Environmental Plan 2012. The plaintiff was awarded costs of the proceedings.
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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