Taleb Family Trust No. 2 v Inner West Council

[2019] NSWLEC 1024

Land and Environment Court

New South Wales

Medium Neutral Citation:	Taleb Family Trust No. 2 v Inner West Council [2019] NSWLEC 1024
Hearing dates:	Conciliation conference on 22 January 2019
Date of orders:	22 January 2019
Decision date:	22 January 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See orders at [7] 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 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Taleb Family Trust No. 2 (Applicant) Inner West Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/171861
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of development application D201700497 (DA) for demolition of existing improvements and construction of a three storey mixed use building and basement parking and associated works, at 826-836 Princes Highway Tempe (site). The site is also described as Lots 1, 2, 3, 4 and 5 DP 17066, Lot 1 DP 70233 and Lot 2, DP 229191.

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 January 2019. I presided over the conciliation conference.

3. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised there are no jurisdictional prerequisites that must be satisfied before this function can be exercised. The proposal was described as satisfying the development standards contained in Marrickville Local Environmental Plan 2011, and for the record I note the view of the parties that the proposal is consistent with the objectives of the subject B6-Enterprise Corridor zone.

5. In regard to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I note the parties advice that a Site Investigation Report was submitted by the Applicant and that Council was satisfied in regard to contamination.

6. 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.

7. The Court orders:

1. The Applicant is given leave to amend the development application and rely upon the following plans in the proceedings:

1. Drawing 01/10, Site plan/Site Analysis, Revision M dated 13.12.18

2. Drawing 02/10, Basement Plan Ground Floor Plan, Revision M dated 13.12.18

3. Drawing 03/10, First Floor Second Floor, Revision M dated 13.12.18

4. Drawing 04/10, Roof Plan, Revision M dated 13.12.18

5. Drawing 05/10, North-West Elevation, Revision M dated 13.12.18

6. Drawing 06/10, South-East Elevation South-West Elevation, Revision M dated 13.12.18

7. Drawing 07/10, North-East Elevation Section A-A, Revision M dated 13.12.18

8. Drawing 08/10, Streetscape Elevation, Revision M dated 13.12.18

9. Drawing 09/10, Deep Soil Diagram, Revision M dated 13.12.18

10. Drawing 10/10, Ground Floor Plan Typical Level -1&2, Revision M dated 13.12.18

2. The Applicant is to pay those costs of the Respondent thrown away as a result of amending the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $8,000.

3. The appeal is upheld.

4. Development application DA201700497 seeking demolish the existing improvements and construct a 3 storey building containing 17 serviced apartments with basement car parking and four (4) ground floor level commercial tenancies is approved subject to the conditions in Annexure A.

……………………………….

P Walsh

Commissioner of the Court

Annexure A

s34 plans

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Decision last updated: 25 January 2019