Ters v Inner West Council

[2020] NSWLEC 1298

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ters v Inner West Council [2020] NSWLEC 1298

Hearing dates:

Conciliation conference on 29-30 June 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Class 1

Before:

Pullinger 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 4 of Annexure A.

(2)   The appeal is upheld.

(3)   Development consent is granted to development application D/2019/171 for retention of the existing dwelling, readjust the boundary line forming the existing two lots and construct 2 semi-detached dwellings including partial basement at 55 Harrow Road, Stanmore subject to the conditions in Annexure A.

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

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (March 2020)

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Ray Ters (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
M Arch (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
Concordia Pacific Law (Applicant)
Inner West Council (Respondent)

File Number(s):

2019/337812

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA201900171 (DA). The DA sought consent for the demolition of an existing detached dwelling, construction of two semi-detached dwellings, a partial basement and associated site subdivision (the proposal) at 55 Harrow Road, Stanmore (the site) by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 and 30 June 2020. I presided over the conciliation conference.

3. Consistent with the COVID-19 Pandemic Arrangements Policy (Pandemic Policy), published on the Court's website on 23 March 2020, the matter was conducted by telephone.

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 agreement involves the Court upholding the appeal and granting development consent to an amended proposal subject to conditions.

5. 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.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. In that regard cl 5.10(4) of the Marrickville Local Environmental Plan 2011 (MLEP) requires consideration of the effect of proposed development on the heritage significance of the area concerned.

7. As the amended proposal now seeks to retain and conserve the original building, I am satisfied the effect of the proposed development is consistent with the objectives of cl 5.10(1) of the MLEP and the respective provisions of the Marrickville Development Control Plan 2011 (MDCP).

8. Accordingly, I am satisfied, that it is appropriate to make the orders agreed by the parties and dispose of the matter under s 34(3)(a) and (b) of the LEC Act.

Orders

9. 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 4 of Annexure A.

2. The appeal is upheld.

3. Development consent is granted to development application D/2019/171 for retention of the existing dwelling, readjust the boundary line forming the existing two lots and construct 2 semi-detached dwellings including partial basement at 55 Harrow Road, Stanmore subject to the conditions in Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (246638, pdf)

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Decision last updated: 14 July 2020