Savell v Inner West Council

[2016] NSWLEC 1517

Land and Environment Court

New South Wales

Medium Neutral Citation:	Savell v Inner West Council [2016] NSWLEC 1517
Hearing dates:	Conciliation conference on 5, 26 October 2016
Date of orders:	03 November 2016
Decision date:	03 November 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION; alterations and additions to an approved but not constructed dwelling; 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:	Jonathan Savell (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Ms J McKelvey, barrister (Respondent) Solicitors: Mills Oakley Applicant) Inner West Council (Respondent)
File Number(s):	2016/00160765
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application D/2015/735 for alterations and additions to an approved but not constructed dwelling at 22 Charlotte Street Rozelle.

2. 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”.

3. 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.

4. 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.

5. 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 rely on the amended plans and documents as referred to in the conditions of consent contained in Annexure “A”;

2. The 4.6 variation to clause 4.3A(3)(b) of Leichhardt Local Environmental Plan 2013 prepared by the Applicant is agreed by the parties to be well founded and is upheld;

3. The 4.6 variation to clause 4.4(2) of Leichhardt Local Environmental Plan 2013 prepared by the Applicant is agreed by the parties to be well founded and is upheld;

4. The appeal is upheld; and

5. Development application D/2015/735 lodged on 22 December 2015 is approved subject to the conditions contained in Annexure “A”.

The Court notes that agreement of the parties that there is to be no order as to costs of the proceedings.

…………….

G T Brown

Commissioner

160765.16 - Annexure A (127 KB, pdf)