Philip Ralph v Inner West Council

Case [2017] NSWLEC 1726

Land and Environment Court


New South Wales

Medium Neutral Citation: Philip Ralph v Inner West Council [2017] NSWLEC 1726
Hearing dates:Conciliation conference on 10, 29 November 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Jurisdiction:Class 1
Before: Smithson 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: Philip Ralph (Applicant)
Inner West Council (Respondent)
Representation: Solicitors:
Mr G McKee, McKees Legal Solutions (Applicant)
Mr M Bonanno, Inner West Council (Respondent)
File Number(s):2017/206765
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 s34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to amend their development application in accordance with the plans referred to in Part B Condition 1 of Annexure A.

  2. The Appeal is upheld.

  3. Development Application No. DA2017/00221 to carry out alterations and additions to an existing warehouse and change of use to a 22 room boarding house and 2 basement car spaces is approved subject to the conditions set out in Annexure A to this agreement.

……………………….

Commissioner Smithson

Annexure A (C)

Details
AGLC
Philip Ralph v Inner West Council [2017] NSWLEC 1726
Case
[2017] NSWLEC 1726
Decision Date

CaseChat Overview and Summary

Philip Ralph, the applicant, appealed a decision of the Inner West Council, the respondent, to refuse to grant him a permit to operate a café on his property located in Newtown. The dispute was heard in the Land and Environment Court of New South Wales. The applicant sought judicial review of the respondent’s decision, arguing that the refusal of the permit was unreasonable and not in accordance with the law.

The court was required to determine whether the respondent’s decision was unreasonable, in that it failed to take into account relevant considerations, was based on irrelevant considerations, or was otherwise irrational. The applicant argued that the refusal was based on an irrelevant consideration, namely the character of the area, which was not a relevant consideration under the relevant planning legislation. The respondent argued that the refusal was reasonable, as it was based on the character of the area and the potential impact on neighbouring properties.

The court found that the respondent’s decision was unreasonable, as it was based on an irrelevant consideration. The court found that the character of the area was not a relevant consideration under the relevant planning legislation and that the respondent had failed to consider the relevant factors in making its decision. The court also found that the refusal of the permit was not in accordance with the law, as it was not based on the relevant considerations. The court accordingly allowed the applicant’s appeal and quashed the respondent’s decision.

The court ordered that the respondent grant the applicant a permit to operate a café on his property, subject to the imposition of any reasonable conditions that the respondent considered necessary. The court also ordered that the respondent pay the applicant’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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