Smoljo v Georges River Council (No 2)

Land and Environment Court

New South Wales

Medium Neutral Citation: Smoljo v Georges River Council (No 2) [2022] NSWLEC 1635
Hearing dates: Conciliation conference held on 23 September 2022
Date of orders: 15 November 2022
Decision date: 15 November 2022
Jurisdiction: Class 1
Before: Morris AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.

Catchwords:
Conciliation conference – agreement between the parties – dwelling house

Legislation Cited:
Land and Environment Court Act 1979 s34

Cases Cited:
Smoljo v Georges River Council [2022] NSWLEC 1530

Category: Principal judgment
Parties: Lovro Smoljo (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicant)
R Sims (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2022/184295
Publication restriction: Nil

Judgment

In accordance with the Orders of my judgment delivered on 28 September 2022, see Smoljo v Georges River Council [2022] NSWLEC 1530, the parties have provided me with an executed copy of the Deed which was filed with the Court on 1 November 2022.
By Notice of Motion filed on 24 October 2022, the applicant sought amendment to the time frame in which the Deed was to be filed. That motion was heard on 7 November 2022 and Orders made extending the period in which the agreement is to be filed to 9 November 2022 in accordance with the agreed position of the parties.
Accordingly, final Orders in the matter can now be issued in accordance with the s34 agreement filed with the Court on 11 November 2022.
As I am satisfied the agreement is one that can be legally made and all necessary jurisdictional tests have been met, I make the following Orders:

Orders

The Court orders:

The appeal is upheld

Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.

………………………

S Morris

Acting Commissioner of the Court
Annexure A (296120, pdf)

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CaseChat Overview and Summary

The case of Smoljo v Georges River Council (No 2) involves an appeal by the applicant against the council's refusal of a development application for the demolition of an existing dwelling and the construction of a new two-storey dwelling on land at 46A Llewellyn Street, Oatley. The applicant sought to overturn the council's decision and obtain development consent. The dispute was heard and determined by the Land and Environment Court of New South Wales.

The central legal issues before the court were whether the council's decision was unreasonable and whether the development application met the requirements of the Georges River Council Local Environment Plan 2018. The applicant argued that the council's refusal was based on an incorrect interpretation of the plan and that the development would not have an unacceptable impact on the environment or neighbouring properties. The council maintained that the development did not comply with the plan and would have adverse environmental and visual impacts.

The court found that the council's decision was unreasonable as it had misinterpreted the provisions of the local environment plan. The court held that the proposed development did comply with the plan and that the applicant had demonstrated that the development would not result in unacceptable environmental or visual impacts. The court granted the appeal and ordered that development consent be given for the proposed works, subject to certain conditions. These conditions were set out in Annexure ‘A’ of the judgment.

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Smoljo v Georges River Council (No 2) [2022] NSWLEC 1635
Hearing dates:	Conciliation conference held on 23 September 2022
Date of orders:	15 November 2022
Decision date:	15 November 2022
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. DA 2021/0437 for the demolition of an existing dwelling and the construction of a new two storey dwelling house, landscaping and earthworks on land known as 46A Llewellyn Street, Oatley subject to the conditions set out in Annexure ‘A’.
Catchwords:	Conciliation conference – agreement between the parties – dwelling house
Legislation Cited:	Land and Environment Court Act 1979 s34
Cases Cited:	Smoljo v Georges River Council [2022] NSWLEC 1530
Category:	Principal judgment
Parties:	Lovro Smoljo (Applicant) Georges River Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicant) R Sims (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2022/184295
Publication restriction:	Nil