Sun v Inner West Council

[2019] NSWLEC 1556

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sun v Inner West Council [2019] NSWLEC 1556
Hearing dates:	Conciliation conference on 7 and 8 November 2019
Date of orders:	19 November 2019
Decision date:	19 November 2019
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1)   Leave is granted to the applicant to amend the development application and rely on the amended plans listed in Condition 1 of Annexure A. (2)   The appeal is upheld. (3)   Development consent is granted to Development Application 201800390 to demolish the majority of the existing dwelling and construct a part two and part three storey dwelling house at 94 Denison Street, Camperdown subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT– demolition of existing dwelling and construction of new dwelling – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category:	Principal judgment
Parties:	Yan Xin Sun (Applicant) Inner West Council (Respondent)
Representation:	Counsel: G Hartley (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)   Solicitors: Hartley Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2019/77889
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Respondent of a development application (DA 2018/00390) for substantial demolition of an existing dwelling and construction of a new dwelling at Lot 1 Deposited Plan 197316 known as 94 Denison Street, Camperdown (the site).

2. The site is subject to Marrickville Local Environmental Plan 2011 (the MLEP) and within the North Kingston Estate Heritage Conservation Area. No submissions were made to the Respondent after notification in accordance with the Respondent’s notification policy of DA 2018/00390.

3. On 7 and 8 November 2019, I presided over a conciliation conference between the parties pursuant to s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act).

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, uphold the appeal and grant development consent to the development application subject to conditions.

5. Pursuant to s 34(3) of the LEC Act (which applies by virtue of s 34AA(2) of the LEC Act), I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The jurisdictional prerequisites relevant in this case that must be satisfied before this function can be exercised are:

1. consider the effect of the proposed development on the heritage significance of the heritage conservation area in which the site falls (cl 5.10(4) of MLEP);

2. be satisfied that a BASIX certificate pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 has been granted.

7. There is no exceedance of the Height control or of the Floor Space Ratio control in MLEP.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act because:

1. there is material before the Court which adequately deals with the effect of the proposed development on the heritage significance of the heritage conservation area; and

2. a BASIX certificate has been provided to the Court.

9. 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’ agreement.

10. 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.

11. The Court orders:

1. Leave is granted to the applicant to amend the development application and rely on the amended plans listed in Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to Development Application 201800390 to demolish the majority of the existing dwelling and construct a part two and part three storey dwelling house at 94 Denison Street, Camperdown subject to the conditions in Annexure A.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (103 KB, pdf)

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Decision last updated: 19 November 2019