Wells v Inner West Council

[2019] NSWLEC 1324

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wells v Inner West Council [2019] NSWLEC 1324
Hearing dates:	Conciliation conference on 4 July 2019
Date of orders:	10 July 2019
Decision date:	10 July 2019
Jurisdiction:	Class 1
Before:	Blakely AC
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the following amended drawings and documents.for the purpose of the development application: (a) MD06 & MD07 dated June 2018 prepared by Connor & Solomon (b) MD12 & MD13 dated June 2019 prepared by Connor & Solomon (c) DA06, DA07, DA12 & DA 14 dated June 2018 prepared by Connor & Solomon (d) Arboricultural Impact Assessment dated 11 March 2019 prepared by Tristan Bradshaw. (2) The appeal is upheld. (3) Development consent is granted to development application D/2018/319 for construction of a double garage accessed via Alexander Street and associated works, including removal of the portion of the concreted rendered street wall and conservation works to the adjoining sandstone wall and sandstone rock face in Alexander Street, and excavation and retaining wall works at 70 Waterview Street, Balmain subject to the conditions set out in Annexure “A”. (4) No Order as to costs
Catchwords:	DEVELOPMENT APPLICATION – garage construction – heritage trees – street parking – garage street access – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013
Texts Cited:	Australian/New Zealand Off Street Parking Standards 2890-0091
Category:	Principal judgment
Parties:	Angus Wells (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/349638
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Angus Wells against the Inner West Council to construct a garage on a property at 70 Waterview Street Balmain (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the refusal by Inner West (the Council) of development application D/2018/319 (the application).

2. The application seeks consent under the Leichhardt Local Environmental Plan 2013 (Council LEP) for construction of a garage for off street parking on the side entrance to the property by demolishing a wall to allow an entrance and construction of the garage. The Council refused consent on the grounds that the proposed garage failed to meet the Council LEP with respect to location of the structure and heritage as well as the Australian/New Zealand Off Street Parking Standards 2890-0091.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (the LEC Act). I presided over that conciliation. As a result of that conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties on 4 July 2019.

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. This decision involved the Applicant performing excavations and construction of the garage in accordance with specific conditions listed below at Annexure A. The applicant concurred with the conditions granting development consent to the development application.

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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [10]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met by the conditions imposed for the development at Annexure A. In making the orders, I am not required to make a merit assessment of the development issues that were originally in contention between the parties. However, I am required to ensure that all of the preconditions to the granting of consent have been met.

6. The LEC Act also requires me to set out in writing the terms of the decision (s 34(3)(b)). The orders made to give effect to the agreement meet that requirement.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The Council has the authority under the Council LEP to review and approve off street parking arrangements.

8. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions as required by s 34(3) of the LEC Act. As a consequence, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

9. 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.

10. The Court orders:

1. The Applicant is granted leave to rely on the following amended drawings and documents for the purpose of the development application:

1. MD06 & MD07 dated June 2018 prepared by Connor & Solomon

2. MD12 & MD13 dated June 2019 prepared by Connor & Solomon

3. DA06, DA07, DA12 & DA 14 dated June 2018 prepared by Connor & Solomon

4. Arboricultural Impact Assessment dated 11 March 2019 prepared by Tristan Bradshaw.

2. The appeal is upheld.

3. Development consent is granted to development application D/2018/319 for construction of a double garage accessed via Alexander Street and associated works, including removal of the portion of the concreted rendered street wall and conservation works to the adjoining sandstone wall and sandstone rock face in Alexander Street, and excavation and retaining wall works at 70 Waterview Street, Balmain subject to the conditions set out in Annexure “A”.

4. No Order as to costs.

……………………….

E Blakely

Acting Commissioner of the Court

Annexure A (64.9 KB, pdf)

Plans (1.15 MB, pdf)

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Decision last updated: 10 July 2019