Zaki v Inner West Council

[2023] NSWLEC 1571

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zaki v Inner West Council [2023] NSWLEC 1571

Hearing dates:

Conciliation conference on 22 September 2023

Date of orders:

29 September 2023

Decision date:

29 September 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 2021/0941 for alterations and additions to an existing building and change of use to a centre-based childcare centre, on Lots 3-6 in DP2294, known as 373-383 Illawarra Road, Marrickville NSW, is determined by the grant of consent, subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Inner West Local Environmental Plan 2022, cl 1.8A

Land and Environment Court Act 1979, s 34

Marrickville Local Environmental Plan 2011, cl 6.2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Edward Zaki (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
R Dunstan (Solicitor) (Respondent)

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

File Number(s):

2022/343603

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA2021/0941 for alterations and additions to an existing building and change of use to a centre-based childcare centre (the proposal), at 373-383 Illawarra Road, Marrickville (the site), by Inner West Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 September 2023. I presided over the conciliation conference. 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.

3. 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.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

Amended application

5. The Court granted the Applicant leave to amend the application on 14 July 2023.

Planning framework

6. The site is zoned B2 Local Centre pursuant to under the Marrickville Local Environmental Plan 2011 (LEP 2011) (cl 1.8A of Inner West Local Environmental Plan 2022). The objectives of the B2 zone, to which regard must be had, are:

• To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area.

• To encourage employment opportunities in accessible locations.

• To maximise public transport patronage and encourage walking and cycling.

• To provide housing attached to permissible non-residential uses which is of a type and scale commensurate with the accessibility and function of the centre or area.

• To provide for spaces, at street level, which are of a size and configuration suitable for land uses which generate active street-fronts.

• To constrain parking and reduce car use.

7. The proposed earthworks and excavation are limited, however, two reports prepared by Acroyali Engineering dated 30 March 2023 form part of the amended application. I am satisfied, on the basis of the evidence before me, that the matters under cl 6.2(2) Earthworks of LEP 2011 have been considered.

8. I am satisfied that the land is suitable for the development on the basis of the preliminary investigation of the site report prepared by EI Australia and dated 6 September 2021, pursuant to s 4.6(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021.

Conclusion

9. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 19 September 2023 and I am satisfied, on the basis of the evidence before me, that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

10. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 2021/0941 for alterations and additions to an existing building and change of use to a centre-based childcare centre, on Lots 3-6 in DP2294, known as 373-383 Illawarra Road, Marrickville NSW, is determined by the grant of consent, subject to conditions contained in Annexure A.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (205989, pdf)

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Decision last updated: 29 September 2023