Prilis v Inner West Council

[2018] NSWLEC 1674

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prilis v Inner West Council [2018] NSWLEC 1674
Hearing dates:	Conciliation conference on 12 November and 19 December 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: residential dwellings; subdivision; conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Nicholas Prilis (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: A Marakis, Agent (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/00148712
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Mr. Nicholas Prilis against the deemed refusal by Inner West Council of development application DA 2018/64. This appeal is made pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) The application is seeking consent for demolition and construction of four attached dwellings over basement car parking and subsequent subdivision. The works are proposed at 51-53 Albert Street, Petersham (Lot 1 in DP 448347). ). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the Court Act) between the parties, which was held on 12 November 2018. With the consent of the parties a further conciliation conference was listed and held on 20 December 2018. I presided over both conciliation conferences.

3. Following the conciliation conference, 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(1) of the EPA Act.

4. 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 (demolition, subdivision and residential accommodation: attached dwellings) is permissible in the R2 Low Density Residential zone.

2. Whilst the site is located in the C18- Petersham South (Norwood Estate heritage conservation area, I am satisfied that the proposed development, as amended, will not have a detrimental effect on the heritage significance of the area concerned.

5. 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.

6. 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.

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

1. Leave is granted for the Applicant to rely on the amended plans and material listed in paragraph 1 of the conditions set out in Annexure ‘A’;

2. The appeal is upheld;

3. Development Application DA201800064, being for demolition of existing improvements and the construction of 4 new attached residential dwellings, and subdivision into 4 Torrens lots and 1 Stratum lot (for basement parking) at 51 to 53 Albert Street Petersham, is approved, subject to the conditions set out in Annexure ‘A’;

4. The Applicant is to pay the Respondent's costs thrown away under s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.00 within 28 days.

……………………….

D M Dickson

Commissioner of the Court

Annexure A

Annexure B Architectural Plans

Annexure B Landscape Plans