Susannah Cassar v Inner West Council

[2016] NSWLEC 1477

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Susannah Cassar v Inner West Council [2016] NSWLEC 1477
Hearing dates:	Conciliation conference on 31 August, 1 September 2016
Date of orders:	05 October 2016
Decision date:	05 October 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPEAL under s97(1) against refusal - conciliation conference - agreement between the parties - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	The Plan Shop (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: Mr. Loether, Bartier Perry, (Applicant) Mr. Bonnamo, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/00161769
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 against the refusal of Development Application No. DA 2015/634 demolition of the existing dwelling, tree removal and construction of a dual-occupancy dwelling and swimming pool with torrens title subdivision (the proposal) at 24 Henry St, Leichhardt (the site) by Inner West Council (the Council).

2. The appeal was subject to mandatory conciliation on 1 September 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). In this matter, at or after a conciliation conference, 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 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 LEC 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 LEC 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, 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 are:

1. The applicant is granted leave to amend its details from ‘The Plan shop’ to ‘Jason and Susannah Cassar’.

2. The appeal is upheld.

3. The Applicant is granted leave to amend development application DA/2015/634 and to rely upon the plans set out in operational Condition 1 in Annexure B , and attached as Annexure A[The Plan Shop dated 15/9/16 and 30/9/16];

4. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B of the Environmental Planning and Assessment Act 1979 as may be agreed or assessed.

5. Development application number: DA 2015/634 for demolition of the existing dwelling, tree removal and construction of a dual-occupancy dwelling and swimming pool with torrens title subdivision at 24 Henry St, Leichhardt (Lot 1 DP1093662) is approved, subject to the conditions in Annexure B.

…………….

D M Dickson

Commissioner of the Court

161769.16 Dickson - Annexure A - Part 1 (7.59 MB, pdf)

161769.16 Dickson - Annexure A - Part 2 (3.88 MB, pdf)

161769.16 Dickson - Annexure B (374 KB, pdf)

161769.16 Dickson - Annexure A - List of plans (135 KB, pdf)

Amendments

24 October 2016 - Added 'Conciliation conference on' in front of the Hearing dates on the cover sheet.