Perry Properties Pty Ltd v Inner West Council

Case [2018] NSWLEC 1407

Land and Environment Court


New South Wales

Medium Neutral Citation: Perry Properties Pty Ltd v Inner West Council [2018] NSWLEC 1407
Hearing dates: Conciliation conference on 3 August 2018
Date of orders: 03 August 2018
Decision date: 03 August 2018
Jurisdiction:Class 1
Before: Chilcott 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: Perry Properties Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation: Solicitors:
A Seton, Marsdens Law Group (Applicant)
J Strati, Inner West Council (Respondent)
File Number(s): 2017/230197
Publication restriction: No

Judgment

  1. 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”.

  2. 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.

  3. 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.

  4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The Applicant’s written request under subclause 4.6(3) of Marrickville Local Environmental Plan 2011 seeking a variation of clause 4.4 of Marrickville Local Environmental Plan 2011 is upheld.

  2. The appeal is upheld.

  3. Development consent is granted to Development Application No. 201500736 seeking consent for the demolition of existing structures and the construction of a 4-storey motel over basement car parking on the land at 43-51 Addison Road, Marrickville, subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (408 KB, pdf)

Details
AGLC
Perry Properties Pty Ltd v Inner West Council [2018] NSWLEC 1407
Case
[2018] NSWLEC 1407
Decision Date

CaseChat Overview and Summary

In the case of Perry Properties Pty Ltd versus Inner West Council, the plaintiff sought a review of a decision made by the defendant council, Inner West Council, regarding a development application. The plaintiff argued that the council's decision was unlawful and sought a review of that decision. The case was heard in the Land and Environment Court of New South Wales. The plaintiff, Perry Properties Pty Ltd, was a property developer who had applied for approval to develop a site in accordance with a particular development plan. The Inner West Council, the defendant, was a local government authority responsible for assessing and approving development applications within its jurisdiction.

The primary legal issue the court had to address was whether the council's decision to refuse the development application was lawful. This involved assessing whether the council had acted within its powers, followed proper procedures, and made a decision that was not unreasonable. The court had to consider the relevant statutory provisions and case law governing development applications and the scope of council powers in this context. Additionally, the court needed to determine whether the council had provided adequate reasons for its decision and whether those reasons were rational and based on proper consideration of the relevant factors.

In its decision, the court found that the council's decision was indeed unlawful. The court held that the council had failed to properly consider all relevant factors and had not provided adequate reasons for its decision. The court emphasised that the council must ensure that its decisions are based on a rational and transparent process, and that the reasons provided must be sufficient to demonstrate that the decision-maker has considered all relevant matters. The court also noted that the council had acted beyond its statutory powers by imposing conditions that were not authorised by law. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in accordance with the law.

ORDERS:
1. The decision of the Inner West Council dated [insert date] is quashed.
2. The matter is remitted to the Inner West Council for reconsideration in accordance with the law.
3. Each party to bear their own costs of the proceeding in the Land and Environment Court.

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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