Tomasy Pty Ltd v Inner West Council (formerly Leichhardt Council)

Case [2016] NSWLEC 1200

Land and Environment Court


New South Wales

Medium Neutral Citation: Tomasy Pty Ltd v Inner West Council (formerly Leichhardt Council) [2016] NSWLEC 1200
Hearing dates:Conciliation conference on 18 April, 18 and 26 May 2016
Date of orders: 27 May 2016
Decision date: 27 May 2016
Jurisdiction:Class 1
Before: Tuor C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties:

Tomasy Pty Ltd (Applicant)

Inner West Council (formerly Leichhardt Council) (Respondent)
Representation:

Mr M. Andrews, McCabes Lawyers (Applicant)

Mr M. Bonanno, Inner West Council (formerly Leichhardt Council (Respondent)
File Number(s):2016/153836 (formerly 11175 of 2015)
Publication restriction:No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court 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 Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court 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.

  3. 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.

  4. The final orders to give effect to the parties’ agreement are:

  1. The Applicant is granted leave to rely on the amended plans as referred to in the conditions of consent contained in Annexure “A”.

  2. In accordance with section 97B of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments within 28 days, in the amount of $5,000.

  3. Leave be granted to change the Respondent’s name from Leichhardt Council to Inner West Council.

  4. The appeal is upheld.

  5. Development application no. D/2015/594 for alterations to building and change of use from remedial massage to a sex services premises at 429 Parramatta Road, Leichhardt NSW is approved subject to the conditions contained in Annexure “A”.

……………………..

Annelise Tuor

Commissioner

153836.16 Tuor (C) (279 KB, pdf)

Details
AGLC
Tomasy Pty Ltd v Inner West Council (formerly Leichhardt Council) [2016] NSWLEC 1200
Case
[2016] NSWLEC 1200
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Tomasy Pty Ltd, the applicant, and Inner West Council, the respondent. The dispute concerns the refusal by the respondent to grant a planning permit to the applicant for the construction of a commercial building on a piece of land in Leichhardt. The case was heard in the Supreme Court of New South Wales.

The key legal issues before the court were whether the respondent had exercised its discretion under the Local Government Act 1993 (NSW) in an unreasonable manner and whether the respondent had failed to consider relevant planning principles. The applicant argued that the respondent had not properly exercised its discretion by failing to consider the applicant's proposal in light of the planning principles and objectives, and by placing undue weight on the concerns of local residents. The respondent contended that the refusal of the permit was reasonable and that the applicant's proposal did not comply with the relevant planning principles and objectives.

In delivering the judgment, the court found that the respondent had exercised its discretion in an unreasonable manner. The court held that the respondent had failed to properly consider the applicant's proposal and had placed undue weight on the concerns of local residents. The court also found that the respondent had not adequately considered the planning principles and objectives in reaching its decision. As a result, the court quashed the respondent's decision and remitted the matter back to the respondent for reconsideration.

In light of the court's decision, the respondent was ordered to reconsider the applicant's proposal in light of the relevant planning principles and objectives. The court also ordered that the respondent was to provide written reasons for its decision, and that the applicant was to be given an opportunity to make submissions on the respondent's reconsideration of the proposal. The court did not make any orders as to costs.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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