Solomon v Inner West Council

Case [2018] NSWLEC 1354

Land and Environment Court


New South Wales

Medium Neutral Citation: Solomon v Inner West Council [2018] NSWLEC 1354
Hearing dates: Conciliation conference on 9-10 July
Date of orders: 13 July 2018
Decision date: 13 July 2018
Jurisdiction:Class 1
Before: Dickson C
Decision:

See [5] below

Catchwords: DEVELOPMENT APPLICATION: 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: Richard Solomon (Applicant)
Inner West Council (Respondent)
Representation: Solicitors:
D Briggs, DG Briggs and Associates (Applicant)
M Bonanno, Inner West Council (Respondent)
File Number(s): 2017/362327
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal by Richard Solomon against the refusal by Inner West Council of development applicant D/2017/498 seeking consent for demolition of the existing dwelling, erection of two attached dwellings and subdivision into two torrens title lots at 25 Coleridge Street, Leichhardt.

  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. Leave is granted to the applicant to rely upon the amended plans produced by the applicant at conciliation.

  2. The appeal is upheld.

  3. Development Application D/2017/498 lodged on 25 September 2017 pursuant to the Environmental Planning and Assessment Act 1979 (EPA Act) seeking consent for the demolition of the existing dwelling, the subdivision of the land and the erection of two attached dwellings with detached carports to the rear of premises at 25 Coleridge Street Leichhardt, is approved subject to the conditions contained in Annexure A.

  4. The Court notes there is no order as to costs.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (117 KB, pdf)

Details
AGLC
Solomon v Inner West Council [2018] NSWLEC 1354
Case
[2018] NSWLEC 1354
Decision Date

CaseChat Overview and Summary

In Solomon v Inner West Council, the plaintiff sought to have a decision of the defendant quashed on the basis that it was unreasonable and failed to properly apply the relevant statutory framework. The dispute arose from the defendant's refusal to grant a development application for the plaintiff's property. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issue for the court was whether the defendant had properly exercised its discretion in rejecting the plaintiff's application. The court needed to determine whether the decision was made in accordance with the relevant statutory provisions and whether it was unreasonable. The court also needed to consider whether the defendant had properly considered relevant factors and exercised its discretion in a manner consistent with the law.

The court held that the decision of the defendant was unreasonable and had failed to properly apply the relevant statutory framework. The court found that the defendant had not adequately considered the relevant factors and had exercised its discretion in an arbitrary and irrational manner. The court also held that the decision was not supported by the evidence and was therefore invalid. As a result, the court quashed the decision and remitted the matter back to the defendant for reconsideration in accordance with the law. The court also ordered that the costs of the proceeding be paid by the defendant.

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.