Land and Environment Court
New South Wales
Medium Neutral Citation: Zeitouni & anor v Inner West Council. [2016] NSWLEC 1319 Hearing dates: Conciliation conference on 2 August 2016 Date of orders: 08 August 2016 Decision date: 08 August 2016 Jurisdiction: Class 1 Before: Fakes C Decision: See (4) below
Catchwords: MODIFICATION APPLICATION; Fencing and balustrades; conciliation conference; agreement between the parties; orders Legislation Cited: Land and Environment Court Act 1979 Category: Principal judgment Parties: David and Melissa Zeitouni (Applicants)
Inner West Council (Respondent)Representation: Applicants: Mr A Seton (Solicitor)
Solicitors:
Respondent: Mr S Turner (Solicitor)
Applicants: Marsdens Law Group
Respondent: Inner West Council
File Number(s): 152621 of 2016 Publication restriction: No
Judgment
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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”.
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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.
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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.
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The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:
The Applicant is granted leave to amend the modification application by substituting the following plans as the plans relied upon for the pupose of the modification application.
Drawing No.
Drawing Title
Prepared by
Revision
Dated
A02
Ground Floor Plan
Architects Becerra
N
3/8/16
A05
Elevations
Architects Becerra
I
3/8/16
A07
Sections
Architects Becerra
H
3/8/16
A12
Elevations
Architects Becerra
I
3/8/16
The appeal is upheld.
The Application made by the Applicants to the Respondent on 18 December 2015 under Section 96(2) of the Environmental Planning and Assessment Act 1979 to modify Development Consent No. D/2014/20 for “Demolition and construction of two x two-storey dwellings” on the land known as Lot 1 DP 599044, 77 Foster Street, Leichhardt (as modified on 1 August 2014) is determined by approving the modifications to Development Consent No. D/2014/20 as set out in Annexure A.
As a consequence of order (3) Development Consent No. D/2014/20 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.
________________________
Judy Fakes
Commissioner of the Court
152621.16 Annexure A (259 KB, pdf)
152621.16 Annexure B (270 KB, pdf)
- AGLC
- Zeitouni v Inner West Council [2016] NSWLEC 1319
- Case
- [2016] NSWLEC 1319
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the council's decision was based on an error of law, whether there was a failure to consider relevant material, and whether the decision was unreasonable in the Wednesbury sense. The plaintiffs argued that the council had misapplied the planning laws, failed to consider critical environmental and community impact assessments, and acted unreasonably by not granting approval despite the property meeting all stipulated conditions. The council, on the other hand, maintained that the decision was made in accordance with the law, all relevant considerations were duly taken into account, and the refusal was justified based on the potential adverse effects on the local community and environment.
In delivering the judgment, Justice Beech-Jones examined the planning legislation, relevant policies, and the council's decision-making process. The court found that the council had indeed erred in its interpretation of the planning laws, particularly in relation to the assessment of environmental impacts. Additionally, the court held that the council had failed to adequately consider the implications of the development on local traffic and community services, which were critical factors under the planning laws. The decision was deemed unreasonable as it did not properly balance the benefits of the development against its potential negative effects. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in light of the court's findings.
The final orders of the court mandated that the Inner West Council reconsider the development application, taking into account the correct interpretation of the planning laws, all relevant environmental and community impact assessments, and the proper balancing of benefits and detriments. The council was directed to provide written reasons for its new decision, ensuring compliance with the legal standards set out in the judgment.
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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