Younis v Inner West Council

[2021] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:

Younis v Inner West Council [2021] NSWLEC 1194

Hearing dates:

Conciliation conference on 17 March 2021

Date of orders:

26 April 2021

Decision date:

26 April 2021

Jurisdiction:

Class 1

Before:

Rappoport AC

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend development application DA 2020/0466 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “B” hereto.

(2) The appeal is upheld.

(3) Development Application DA D/2020/0466 for demolition of existing structures, Torrens title subdivision into two lots and construction of an attached two storey dwelling on each lot, and associated works at 95 Allen Street, Leichhardt is approved subject to the conditions at   Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between parties – orders – Conditions – construction

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Land and Environment Court Act 1979 ss 34, 34AA

Leichhardt Local Environmental Plan 2013 Pt 4

State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Joseph Younis (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
C Maley (Applicant)
S Allam (Respondent)

Solicitors:
Maclarens Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2020/299857

Publication restriction:

No

Judgment

1. COMMISSIONER: Joseph Younis (Applicant) is the owner of 35 Allen Street Leichhardt (Lot 3 in DP 18648). These proceedings relate to an appeal against the Respondent’s (“Council”) deemed refusal of Development Application No. DA/2020/0466 which is seeking consent for the demolition of the existing structures, Torrens title subdivision into two lots and construction of an attached two storey dwelling on each lot, and associated landscaping. This appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17 March 2021. I have presided over the conciliation conference.

3. There was no on-site view as the parties had already reached an agreement based on amended plans. The parties advised me they reached agreement under s 34(3) of the LEC Act, as to the terms of the decision in the proceedings that would be acceptable to the parties. This decision involved the preparation of an amendment known as Annexure “A”.

4. The agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works is specified in the agreed conditions of development consent annexed to the s 34 agreement which was prepared in accordance with s 34(10) of the LEC Act and was subsequently filed with the Court on 17 March 2021.

5. The parties asked me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant - noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

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. I formed an opinion of satisfaction that each of the matters to which the Court must give regard have been satisfactorily addressed as follows:

1. The Applicant is the owner of 35 Allen Street Leichhardt being Lot 3 in DP 18648.

2. The Applicant lodged a development application on 26 June 2020 for the demolition of the existing structure, Torrens Title subdivision, and construction of 2 attached dwellings on each of the lots and associated works being DA/2020/0466.

3. The Applicant appealed against a deemed refusal of the said development application on 19 October 2020.

4. The Applicant lodged a notice of motion on 4 November 2020 to seek the Court’s consent to lodge amended plans referred to as issue C.

5. The Court granted such consent to the amended plans being Issue C - being the plans the subject of this appeal.

6. The site is 410.6 square metres with a street width of 10.365 metres on a length of 39.65 metres.

7. The subject site is zoned R1 General Residential.

8. Attached dwellings are permitted with consent under R1 General Residential.

9. Part 4 of Leichhardt Local Environmental Plan 2013 permits subdivision of land with consent.

10. Council issued a Statement of Facts and Contentions identifying nine contentions.

11. A joint report was prepared by Nathan Croft – consultant planner for the Applicant, and Eric Wong planner – for the Respondent, which has been filed with the Court.

12. In Part 3 of the joint report, the experts agree that if the plans were to be amended as follows:

1. delete the car space from the application and plans;

2. relocate the subject dwellings 1 metre closer to Allen Street in line with Council's requirements and adjoining properties.

13. Both experts agree that the above amendments address all the issues except Issue 7 (drainage).

14. Issue 7 has been addressed by proposed conditions which the Applicant accepts.

15. The Applicant has amended the application and plans by deleting the car space and relocating the buildings closer to the street.

16. The Applicant seeks the Court’s approval to lodge the amended plans being Issue D dated 23 February 2021 to be the plans for the application.

17. On the basis of the amended plans, the parties have reached an agreement pursuant to s 34 and have signed an agreement on 17 March 2021.

18. The Applicant and the Respondent seek the Court’s consent and endorsement of the s 34 agreement lodged with the Court.

8. The Court orders that:

1. The Applicant is granted leave to amend development application DA 2020/0466 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “B” hereto.

2. The appeal is upheld.

3. Development Application DA D/2020/0466 for demolition of existing structures, Torrens title subdivision into two lots and construction of an attached two storey dwelling on each lot, and associated works at 95 Allen Street, Leichhardt is approved subject to the conditions at Annexure “A”.

……………………….

P Rappoport

Acting Commissioner of the Court

Annexure A (278406, pdf)

Annexure B (5979060, pdf)

**********

Decision last updated: 26 April 2021