Milestone (Aust) Pty Limited v Inner West Council [2016] NSWLEC 1457

Land and Environment Court New South Wales

Medium Neutral Citation: Milestone (Aust) Pty Limited v Inner West Council [2016] NSWLEC 1457 Hearing dates: Conciliation conference on 27 September 2016 Date of orders: 29 September 2016 Decision date: 29 September 2016 Jurisdiction: Class 1 Before: Dickson C Decision: See [6] below Catchwords: DEVELOPMENT APPEAL - s97(1) against deemed refusal - conciliation conference - agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Milestone (Aust) Pty Limited (Applicant) Inner West Council (Respondent) Representation: Counsel: I, Hemmings SC, (Applicant)

Solicitors: M Peatman, Hunt & Hunt (Applicant) S Turner, Inner West Council (Respondent) File Number(s): 2016/00212037 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal, under s97(1) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of development application (D/2015/734) for the substantial demolition of the rear of the existing dwelling, alternations and additions, construction of a basement, tree removal, remediation, pool and site landscaping at 118 Louisa Road Birchgrove. 2. The appeal was subject to mandatory conciliation on 27 September 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). During the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. 3. 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". 4. 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. 5. 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. 6. The final orders to give effect to the parties' agreement are: 1. The Applicant is granted leave to rely upon the amended plans contained in Annexure A; 2. The written request made pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 to vary the 'floor space ratio' is accepted; 3. The appeal in respect of the proposed development at 118 Louisa Rd Birchgrove, is upheld; 4. Development application D/2015/734 lodged for the partial demolition of the rear of the existing dwelling and construction of a three storey dwelling above a basement level containing a swimming pool and associated site works, is approved subject to conditions contained in Annexure B. ……………… D M Dickson Commissioner 212037.16 - Annexure B (160 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2016