Succar v Inner West Council

[2020] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation:	Succar v Inner West Council [2020] NSWLEC 1023
Hearing dates:	Conciliation conference on 25 November 2019
Date of orders:	16 January 2020
Decision date:	16 January 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders: (1)   The Applicant is granted leave to rely on the amended drawings (as referred to in Annexure “A”) for the purpose of the development application. (2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979, in the sum of $6,000.00. (3)   The appeal is upheld. (4)   Development consent is granted to modified development application DA 2018.91.1 for the demolition of the existing structures and construction of an 8 room boarding house at 122A Milton Street, Ashfield is determined by approving the plans and modifications as set out in Annexure “B”.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – conciliation conference – agreement between the parties – orders
Legislation Cited:	Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2004 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Sonia Succar (Applicant) Inner West Council (Respondent)
Representation:	Counsel: N Hammond (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Greenaway and Tohme Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2019/56705
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) by the Applicant against the refusal of its development application DA 2018.19.1. The development application (as amended) seeks approval for demolition of the existing structures and construction of an 8-room boarding house. The development is proposed at 122A Milton Street, Ashfield (Lot 61 DP 876820).

2. On 25 May 2018, the Applicant lodged a development application with Inner West Council. The Council refused the development application on 3 August 2018; the Applicant is appealing that refusal.

3. In accordance with the Court’s usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on 9 August 2019. By consent, orders for a further conciliation conference were made and that conciliation conference was held on 25 November 2019. I presided over the further conciliation conference. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application.

4. Following the conciliation, 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 parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent.

5. The amendments made to the application include:

• The reduction in the number of rooms to 8.

• The increase in car parking to 3 spaces plus Shared Zone.

• The increase in the size of rooms.

• An increase in the size of private open space.

• The relocation of the Garbage Room.

• The reconfiguration of the Southern and Western elevations.

6. 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. Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application.

2. The proposed development satisfies cl 26 of State Environmental Planning Policy (Affordable Rental Housing) 2004 (SEPP ARH) as the land is zoned R2 Low Density Residential pursuant to Ashfield Local Environmental Plan 2013. Accordingly SEPP ARH applies.

3. The parties agree, and I accept, that the site is located within 400m walking distance of bus stops in Milton Street and Palace Street that meet the requirements of cl 27 of SEPP ARH.

4. The proposed development satisfies the standards detailed at cl 30 of SEPP ARH.

5. I accept the agreement of the parties that the development, as modified, is compatible with the character of the local area: cl 30A SEPP ARH.

6. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 910430M_03 in compliance with the instrument.

7. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, the Applicant submitted a Preliminary Soil assessment report. That report concludes that the site is suitable for the proposed residential use.

8. The original application was notified in accordance with the relevant development control plan and the submissions have been considered.

7. 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.

8. 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.

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

1. The Applicant is granted leave to rely on the amended drawings (as referred to in Annexure “A”) for the purpose of the development application.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15 of the Environmental Planning and Assessment Act 1979, in the sum of $6,000.00.

3. The appeal is upheld.

4. Development consent is granted to modified development application DA 2018.91.1 for the demolition of the existing structures and construction of an 8 room boarding house at 122A Milton Street, Ashfield is determined by approving the plans and modifications as set out in Annexure “B”.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (5.84 MB, pdf)

Annexure B (165 KB, pdf)

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Decision last updated: 17 January 2020