Land and Environment Court
New South Wales
Medium Neutral Citation: P K Family Investments No. 2 Pty Limited v Inner West Council [2018] NSWLEC 1235 Hearing dates: Conciliation conference on 15 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Class 1 Before: Bish C 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: P K Family Investments No. 2 Pty Limited (Applicant)
Inner West Council (Respondent)Representation: Solicitors:
P Rigg, Peter R Rigg (Applicant)
S Turner, Inner West Council (Respondent)
File Number(s): 2017/343692 Publication restriction: No
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 make, 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 under s34(3) of the Land and Environment Court Act 1979 are:
The Applicant is granted leave to amend Development Application No. DA201700354 and to rely upon the following amended plans and documents, copies of which are behind Annexure “A”:
Plan, Revision and Issue No.
Plan Name/ Certificate
Type
Date Issued
Prepared by
Date Submitted
DA02 Rev C
Proposed Ground Floor Plan
16.05.2018
Archispectrum
16.05.2018
DA03 Rev C
Proposed First Floor Plan
16.05.2018
Archispectrum
16.05.2018
DA04 Rev C
Proposed Site & Roof Plan
16.05.2018
Archispectrum
16.05.2018
DA05 Rev c
Proposed Front & Rear Elevations
16.05.2018
Archispectrum
16.05.2018
DA06 Rev C
Proposed Darley Lane Elevations
16.05.2018
Archispectrum
16.05.2018
DA07 Rev C
Proposed Side Elevations
16.05.2018
Archispectrum
16.05.2018
DA08 Rev C
Proposed Section
16.05.2018
Archispectrum
16.05.2018
DA09 Rev C
Subdivision Plan
16.05.2018
Archispectrum
16.05.2018
DA11 Rev C
External Finishes
16.05.2018
Archispectrum
16.05.2018
DA13 Rev C
Landscape Concept Plan
16.05.2018
Archispectrum
16.05.2018
838773S
BASIX Certificate
07.07.2017
Greenworld Architectural Drafting
17.07.2017
A286175
BASIX Certificate
07.07.2017
Greenworld Architectural Drafting
17.07.2017
The appeal is upheld.
The applicant is to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,000 GST inclusive in full and final payment within 28 days.
Development Application No. DA201700354 to demolish a secondary dwelling and part of an existing dwelling, subdivision of land into 2 Torrens Title allotments, maintain and carry out alterations and additions to the existing dwelling house on Lot 1 and construct a new 2 storey dwelling house on Lot 2 at 27 Darley Street, Newtown, be approved subject to the conditions which are behind Annexure “B”.
……………………….
Sarah Bish
Commissioner of the Court
Annexure A (4.52 MB, pdf)
Annexure B (207 KB, pdf)
- AGLC
- P K Family Investments No. 2 Pty Limited v Inner West Council [2018] NSWLEC 1235
- Case
- [2018] NSWLEC 1235
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Inner West Council had the authority to deny approval for the proposed development under the relevant planning legislation. Specifically, the court had to consider whether the council's decision was made in accordance with the statutory requirements outlined in the Environmental Planning and Assessment Act 1979 (NSW). The appellant argued that the council had failed to consider relevant planning instruments and statutory objectives, thereby making an invalid decision. The respondent contended that the decision was lawful, as it was based on appropriate environmental and planning considerations.
The court examined the decision-making process of the council and the evidence presented to determine whether the council had acted lawfully. The court found that the council had properly considered the statutory requirements and relevant planning instruments. The council had weighed the merits of the application against the statutory objectives, and the court concluded that the decision was not made in an unlawful manner. The appellant's argument that the council failed to consider relevant statutory objectives was rejected by the court, as it was found that the council had, in fact, considered those objectives and made a reasoned decision. Therefore, the appeal was dismissed.
The court ordered that the decision of the Inner West Council denying approval for the development of the property at 16-20 High Street, Petersham, be upheld. The appellant was required to pay the respondent's costs of the appeal.
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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