Stevens v Leichhardt Council [2015] NSWLEC 1332

Land and Environment Court New South Wales

Medium Neutral Citation: Stevens v Leichhardt Council [2015] NSWLEC 1332 Hearing dates: 29 July and 5 August, 2015 Date of orders: 12 August 2015 Decision date: 12 August 2015 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Development Application No. D/2014/663 for a Torrens title subdivision and construction of a pair of semi-detached dwellings at 47 Balmain Street, Leichhardt, is approved, subject to the conditions of consent at Annexure 'A'. 3. The exhibits, other than exhibits 1, A, B, and C, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; subdivision of existing allotment into two allotments; construction of semi-attached dwellings; whether the proposal is inconsistent with the prevailing subdivision pattern in the locality; whether the design of the proposal is appropriate in the streetscape setting; amenity; stormwater. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Mr Stewart Stevens (Applicant) Leichhardt Council (Respondent) Representation: Counsel: Mr P. Clay SC (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitors: - (Applicant) Leichhardt Council (Respondent) File Number(s): 10215 of 2015

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. D/2014/663 for the subdivision of an existing allotment into two allotments and the construction of a pair of semi-detached dwellings (the proposal) at 47 Balmain Road, Leichhardt (the site) by Leichhardt Council (the Council). 2. The appeal was subject to mandatory conciliation on 22 April 2015, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on the same day, pursuant to s 34(4) of the LEC Act. The proposal was amended following the termination of the conciliation conference and leave was granted by the Court on 26 May 2015 for the applicant to rely on the amended proposal. 3. Following the commencement of the hearing on-site on 29 July, 2015, the hearing was adjourned until 5 August, 2015, for the applicant to prepare a further amended proposal in accordance with the agreement of the planning and engineering experts. 4. Leave was unopposed by the Council and granted by the Court for the applicant to rely on the further amended proposal (exhibit A). Following the amendments made to the proposal, the parties agreed to enter into consent orders. In 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. 1. There were no resident objectors present at the hearing.