Sekulovski v Inner West Council

Case [2018] NSWLEC 1299

Land and Environment Court


New South Wales

Medium Neutral Citation: Sekulovski v Inner West Council [2018] NSWLEC 1299
Hearing dates: Conciliation conference on 10 & 31 May 2018; 6 June 2018
Date of orders: 15 June 2018
Decision date: 15 June 2018
Jurisdiction:Class 1
Before: Gray C
Decision:

See [5] below

Catchwords: DEVELOPMENT APPLICATION – shop top housing - conciliation conference - agreement between the parties - orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: Nick Sekulovski (Applicant)
Inner West Council (Respondent)
Representation: Solicitors:
A Gough, Storey & Gough (Applicant)
M Bonanno, Inner West Council (Respondent)
File Number(s): 2017/336377
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal by Mr Sekulovski against the refusal by Inner West Council on 8 May 2017 of a review of determination number 201600565 that refused development consent for shop top housing at 595 King Street, Newtown (Lot B DP443127). The present application is seeking consent to retain the front façade and ground floor shop and construct a development comprising 1 commercial tenancy and 5 residential units.

  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 make, 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 s 34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to rely on an amended development application incorporating:

  1. architectural plans prepared by Architectural Projects:

  1. Drawing No. DA201 to DA203, DA205, DA302, DA401, DA401B, DA403, DA701 and DA702 to Revision D and dated 21 May 2018.

  2. Drawing No. DA204, DA301, DA402, DA404 and DA405 Revision D and dated 6 June 2018.

  3. Drawing No. DA608 to DA610, Revision A and dated 22 May 2018.

  4. Drawing No. DA803 and DA805, Revision C and dated 21 May 2018.

  1. BASIX Certificate No. 929719M_02.

  2. Nationwide House Energy Rating Scheme Certificate dated 23 May 2018.

  3. Amended Clause 4.6 variation prepared by GAT and Associates Pty Ltd and dated 25 May 2018.

  4. Amended Acoustic Assessment prepared by Day Design Pty Ltd and dated 23 May 2018.

  5. BCA Assessment prepared by Paul Aramini Consulting Pty Ltd and dated 23 May 2018.

  1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the development application pursuant to s.8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $5,000 within 28 days.

  2. The appeal is upheld.

  3. Development application 201600565.01 for the erection of a shop top housing development containing 1 retail/business tenancy and 5 residential apartments at No. 595 King Street, Newtown is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (243 KB, pdf)

Plans (2.77 MB, pdf)

Details
AGLC
Sekulovski v Inner West Council [2018] NSWLEC 1299
Case
[2018] NSWLEC 1299
Decision Date

CaseChat Overview and Summary

In the matter of Sekulovski v Inner West Council, the plaintiff, Sekulovski, sought judicial review of a decision by the Inner West Council to deny a development application. The case was heard by the Land and Environment Court of New South Wales, presided over by Justice Groves. The primary issue for determination was whether the council had acted lawfully and rationally in rejecting the development application, and whether the decision was unreasonable or otherwise flawed.

The court was required to examine the statutory and regulatory framework governing the approval of development applications, particularly whether the council's decision was in accordance with the relevant planning legislation and policies. Additionally, the court needed to assess whether the council had provided adequate reasons for its decision and whether it had considered all relevant matters, including the impact of the proposed development on the local environment and community. The court also had to consider whether there were any procedural irregularities that might have affected the fairness of the decision-making process.

Justice Groves found that the council had not adequately considered the potential environmental impacts of the development, particularly in relation to noise and traffic. The court held that the decision was therefore unreasonable as it failed to properly weigh the relevant factors in accordance with the statutory requirements. The court further found that the council's reasons for rejecting the application were insufficient and did not provide a clear basis for its decision. Consequently, the court granted the application for judicial review and quashed the council's decision, directing the council to reconsider the application in light of the court's findings.

In addition to the quashing order, the court directed the council to provide detailed reasons for any future decision, ensuring that all relevant considerations were appropriately addressed. The court emphasised the importance of thorough and transparent decision-making in planning matters, highlighting the need for councils to adhere strictly to statutory and policy requirements.

Orders

Orders of the court

See [5] below

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.