Prilis v Marrickville Council [2012] NSWLEC 1348

Land and Environment Court New South Wales

Medium Neutral Citation: Prilis v Marrickville Council [2012] NSWLEC 1348 Hearing dates: 14 December 2012 Decision date: 19 December 2012 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The applicant is granted leave to rely upon amended plans Nos. DA-1103B and DA-1854C dated 27 November 2012 prepared by Nicholas Prilis and the Amended Plan of Management Revision B dated November 2012 prepared by Peter Prilis. 2. By consent, the appeal is upheld. 3. Development consent is granted to development application No.201200172 lodged with the Respondent on 15 May 2012 for use of existing buildings at 2-4 Shaw Street Petersham as a boarding house with 39 boarding rooms and 3 Manager's rooms and alterations and additions to accommodate the use subject to the conditions at Annexure A. 4. There is no order as to costs. Catchwords: DEVELOPMENT APPLICATION: consent orders; boarding house. Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Category: Principal judgment Parties: Anastasios Prilis (Applicant) Marrickville Council (Respondent) Representation: Mr Mark Driscoll (Solicitor) (Applicant) Mr Joe Strati (Solicitor) (Respondent) Solicitors BCP Lawyers and Consultants (Applicant) Marrickville Council (Respondent) File Number(s): 11108 of 2012

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application No. DA201200172 (the application) for minor alterations and additions to existing buildings at 2-4 Shaw Street, Petersham (the site) for a proposed new use as a boarding house, containing 39 lodger's rooms and 3 on-site manager's rooms. 2Prior to the hearing, the Council determined to enter into consent orders, based on a confidential report provided to them by the Council's Principal Solicitor. Minor amendments have been made to the proposal, including: * Providing a minimum 1.8 m lapped and capped fence to the western and northern boundaries; * Providing bollards and landscaping adjacent to the on-site parking on the southern side of the site. 3In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraphs 35-6) provides: Application for final orders by consent of parties 35. When there is agreement prior to the commencement of a hearing of development appeals involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 4In accordance with the Practice Note, five local residents provided evidence at the consent order hearing. The residents' concerns can be summarised as: * The proposal is incompatible with the character of the locality; * While the proposal does not introduce any additional floor area to the site, the proposal is of a scale and intensity significantly greater than would ordinarily be expected in a residential zone and it will therefore have a greater impact on the amenity of the neighbours, including noise impacts; and * Insufficient parking is provided on-site.