Land and Environment Court New South Wales Medium Neutral Citation: Rogers v Inner West Council [2017] NSWLEC 1549 Hearing dates: Conciliation conference on 29 September 2017 Date of orders: 06 October 2017 Decision date: 06 October 2017 Jurisdiction: Class 1 Before: Brown C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: demolition of the existing dwelling and swimming pool, Torrens title subdivision into two lots and construction of two new dwellings; conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Category: Principal judgment Parties: Tyler Rogers (Applicant) Inner West Council (Respondent) Representation: Solicitor: Mr Griffiths, Bartier Perry (Applicant) Mr M Bonnano, Inner West Council (Respondent) File Number(s): 2017/121723 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application No. D/2016/497 for demolition of the existing dwelling and swimming pool, Torrens title subdivision into two lots and construction of two new dwellings at 9 Thornley Street, Leichhardt. 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 appeal is upheld. 2. The Applicant is granted leave to amend Development Application No. D/2016/497 and to rely upon the following amended plans and documents, copies of which are behind Annexure "A": Plan Reference & Title Drawn By Dated DA00 Rev F – Cover Page TW Architects 11.09.17 DA01 Rev F – BASIX – No. 9 TW Architects 11.09.17 DA02 Rev F – BASIX – No. 9A TW Architects 11.09.17 DA03 Rev F – Site Analysis Plan TW Architects 11.09.17 DA04 Rev F – Demolition Plan TW Architects 11.09.17 DA05 Rev F – Proposed Subdivision Plan TW Architects 11.09.17 DA06 Rev F – Proposed Site & Roof Plan TW Architects 11.09.17 DA07 Rev F – Proposed Ground Floor Plan TW Architects 11.09.17 DA08 Rev F – Proposed First Floor Plan TW Architects 11.09.17 DA09 Rev F – Proposed Attic Plan TW Architects 11.09.17 DA10 Rev F – Proposed Sections TW Architects 11.09.17 DA11 Rev F – Proposed Sections TW Architects 11.09.17 DA12 Rev F – Proposed Elevations TW Architects 11.09.17 DA13 Rev F – Proposed Elevations TW Architects 11.09.17 DA14 Rev F – Winter Solstice Shadow Diagram 9AM TW Architects 11.09.17 DA15 Rev F – Winter Solstice Shadow Diagram 10AM TW Architects 11.09.17 DA16 Rev F – Winter Solstice Shadow Diagram 11AM TW Architects 11.09.17 DA17 Rev F – Winter Solstice Shadow Diagram 12PM TW Architects 11.09.17 DA18 Rev F – Winter Solstice Shadow Diagram 1PM TW Architects 11.09.17 DA19 Rev F – Winter Solstice Shadow Diagram 2PM TW Architects 11.09.17 DA20 Rev F – Winter Solstice Shadow Diagram 3PM TW Architects 11.09.17 DA21 Rev F – Elevational Shadow Diagrams TW Architects 11.09.17 DA22 Rev F – Elevational Shadow Diagrams TW Architects 11.09.17 DA23 Rev F – Elevational Shadow Diagrams TW Architects 11.09.17 DA24 Rev F – Elevational Shadow Diagrams TW Architects 11.09.17 DA25 Rev F – 3D Shadow Diagrams – Existing TW Architects 11.09.17 DA26 Rev F – 3D Shadow Diagrams – Existing TW Architects 11.09.17 DA27 Rev F – 3D Shadow Diagrams TW Architects 11.09.17 DA28 Rev F – 3D Shadow Diagrams TW Architects 11.09.17 DA29 Rev F – 3D Shadow Diagrams – Front TW Architects 11.09.17 DA30 Rev F – 3D Shadow Diagrams – Front TW Architects 11.09.17 DA31 Rev F – FSR Diagrams TW Architects 11.09.17 Rev A – Finishes Schedule TW Architects 07.09.17 Landscape Concept and Planting Details and Specification – Revs C Site Design + Studio 12.09.17 Document Title Prepared By Dated BASIX Certificate – 758907S_03 TW Architects 30.08.17 BASIX Certificate – 758336S_05 TW Architects 30.08.17 1. The Applicant's clause 4.6 request, prepared by Minto Planning Services and dated 10 September 2017, for a variation of the Floor Space Ratio development standard under the Leichhardt Local Environmental Plan 2013, a copy of which is behind Annexure "B", is upheld. 2. The Applicant is to pay the Respondents costs, as agreed or assessed, under section 97B of the Environmental Planning and Assessment Act 1979. 3. Development Application No. D/2016/497 for demolition of the existing dwelling and swimming pool, Torrens title subdivision into two lots and construction of two new dwellings on Lot 1 in Deposited Plan 121624 and Lot 35 Sec 8 in Deposited Plan 612 (otherwise known as 9 Thornley Street, Leichhardt), be approved subject to the conditions which are behind Annexure "C". ………………………. Commissioner Brown Annexure A (14.0 MB, pdf) Annexure B Clause 4.6 - 9 Thornley Street Leichhardt (Rev. E) (166 KB, pdf) Annexure C (415 KB, pdf) Amendments 06 December 2017 - Pursuant to rule 36.17 of the UCPR. the 'slip rule', paragraph [5] is amended so that order (2) refers to the correct plans and documentation in accordance with the s 34 agreement and order (4) is amended to read: "The Applicant is to pay the Respondents costs, as agreed or assessed, under section 97B of the Environmental Planning and Assessment Act 1979." 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: 06 December 2017