Urban Link Pty Ltd v Inner West Council

[2020] NSWLEC 1229

Land and Environment Court

New South Wales

Medium Neutral Citation:	Urban Link Pty Ltd v Inner West Council [2020] NSWLEC 1229
Hearing dates:	Conciliation conference on 18 May 2020
Date of orders:	28 May 2020
Decision date:	28 May 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court Orders: (1) The appeal is upheld. (2) Development Application DA 10.2018.208 for the construction of a boarding house with 30 rooms (including manager’s room) at Lot 1 DP 169500, 28 Chandos Street, Ashfield is approved in accordance with the plans listed in Condition 4 of Annexure ‘A’ and subject to the conditions in Annexure ‘A’.
Catchwords:	DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Urban Link Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: V Conomos (Solicitor) (Applicant) S Turner (Solicitor) (Respondent)   Solicitors: Conomos Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2019/51357
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 Inner West Council's deemed refusal of Development Application 10.2018.208 (‘DA’).

2. The DA seeks consent for the construction of a boarding house with thirty rooms (including manager), two levels of basement car parking, stormwater drainage and landscaping. The site is at 28 Chandos Street Ashfield, legally described as Lot 1 in DP 169500.

3. 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 18 May 2020, and at which I presided. At the conciliation conference the parties provided an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied. In regard to jurisdiction, and noting this advice, I am satisfied of the following:

1. The proposal is permissible under Ashfield Local Environmental Plan 2013 (‘LEP’), with boarding houses permissible in the R3 Medium Density Residential zone that applies to the site.

2. State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’) applies to the proposal. The maximum floor space ratio (‘FSR’) permitted under the LEP is 0.7:1. The boarding house development is eligible for a bonus FSR of 0.5:1 in accordance with Clause 29(1) of the SEPP. A total maximum FSR of 1.2:1 (836sqm) is permitted. The proposal results in a FSR of 1.19:1 (831.1sqm), and thus complies.

3. The proposal conforms with other development standards contained in the LEP.

4. Having regard to notification requirements and requirements for a consent authority to take into consideration any submissions made, I am advised that the application was originally placed on notification between 14-28 January 2019 and was subject to further notification with subsequent amendments. Having heard advice from Council’s planner, I am satisfied that public submissions have been considered.

5. Having received advice from Council in regard to geotechnical studies undertaken and specified conditions of consent, the requirements of cl 6.1(3) of the LEP, in regard to earthworks, have been met.

6. Having regard to cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land (‘SEPP 55’), consideration has been given as to whether the subject site is contaminated. I am advised that Council’s relevant experts determined that no technical examination was required due to the historical use of the site for residential purposes.

7. With the above findings, I am satisfied that jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

9. The Court orders:

1. The appeal is upheld.

2. Development Application DA 10.2018.208 for the construction of a boarding house with 30 rooms (including manager’s room) at Lot 1 DP 169500, 28 Chandos Street, Ashfield is approved in accordance with the plans listed in Condition 4 of Annexure ‘A’ and subject to the conditions in Annexure ‘A’.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (342701, pdf)

Plans (10636833, pdf)

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Decision last updated: 01 June 2020