Ashfield 381 Pty Ltd v Inner West Council [2017] NSWLEC 1540

Land and Environment Court New South Wales

Medium Neutral Citation: Ashfield 381 Pty Ltd v Inner West Council [2017] NSWLEC 1540 Hearing dates: Conciliation conference on 28 July, 31 August & 5 September 2017 Date of orders: 21 September 2017 Decision date: 21 September 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of existing structures and construction of two six storey residential flat buildings; 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: Ashfield 381 Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitor: Mr D Tyrrell, McKees Legal Solutions (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2017/148379 Publication restriction: No

Judgment 1. COMMISSIONER: This is aa appeal against the refusal of Development Application No. DA2016.276 for the demolition of existing structures and construction of two six storey residential flat buildings containing forty apartments over basement and at grade parking and six townhouse dwellings at 381 Liverpool Road, Ashfield. 2. 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". 3. 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. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to amend the development application and rely on the plans referred to in Condition A(1) of Annexure "A" to this agreement. 2. The Appeal is upheld. 3. Development Application Number DA2016.276 for the demolition of existing structures and construction of two (2) x six (6) storey residential flat buildings containing forty (40) apartments over basement and at grade parking and six (6) townhouse dwellings at 381 Liverpool Road, Ashfield is approved subject to the conditions set out in Annexure "A" to this agreement. 4. The applicant is to pay the respondent's costs thrown away pursuant to s97B of the Environmental Planning and Assessment Act 1979, in the amount of $7,500.00 in full and final payment of all costs in this matter. This amount is to be paid the same day that the Court makes these orders. ………………………. Commissioner G Brown Annexure A (471 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: 28 September 2017