Land and Environment Court New South Wales Medium Neutral Citation: Cowan v Inner West Council [2017] NSWLEC 1696 Hearing dates: Conciliation conference on 26 October 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; alterations and additions; existing heritage item; new residential units; amended plans; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Gary Cowan (Applicant) Inner West Council (Respondent) Representation: Solicitor: Ms E Fleming, Swaab Attorneys (Applicant) Mr M Bonanno, Inner West Council (Respondent) File Number(s): 2017/00153873 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal, under s97 of the Environmental Planning and Assessment Act 1979, against Council's refusal of development application number D/2016/391. The application seeks approval for internal alterations to the existing hotel, excavation to the existing basement, conversion of the upper floor of the hotel into a residential dwelling and construction of two new residential dwellings. The development is proposed at 31 Cameron Street, Birchgrove. 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 be given leave to rely upon the following amended material: Drawing No. and Issue Drawing Title Prepared by Date of Plan DA 01, Issue E Proposed Site Plan Connor & Solomon Architects 10 November 2017 DA02, Issue E Proposed Basement Floor Plan Connor & Solomon Architects 10 November 2017 DA03, Issue E Proposed Ground Floor Plan Connor & Solomon Architects 10 November 2017 DA04, Issue E Proposed First Floor Plan Connor & Solomon Architects 10 November 2017 DA05, Issue E Proposed Second Floor Plan Connor & Solomon Architects 10 November 2017 DA06, Issue E Proposed Cross Section AA Connor & Solomon Architects 10 November 2017 DA07, Issue E Proposed Section BB Connor & Solomon Architects 10 November 2017 DA08, Issue E Proposed Short Street Elevation Connor & Solomon Architects 10 November 2017 DA09, Issue E Proposed South (Rear) Elevation Connor & Solomon Architects 10 November 2017 DA10, Issue E Proposed Cameron Street Elevation Connor & Solomon Architects 10 November 2017 DA17, Issue E Waste Management Plan Connor & Solomon Architects 10 November 2017 729236M_02 BASIX Certificate Green Rate November 2017 Not applicable Conservation Works Schedule, Revision 3 DFP Planning consultants 10 November 2017 29303SBlet, Rev 1 Geotechnical Assessment JK Geotechnics 9 November 2017 NE219 Hazardous Materials Survey Geotesta Pty Ltd 25 October 2017 8YMVOL9JQS Nationwide Energy Rating Scheme Certificate NatHERS 10 November 2017 F84TMP9LSE Nationwide Energy Rating Scheme Certificate NatHERS 10 November 2017 6WTGG7I9XY Nationwide Energy Rating Scheme Certificate NatHERS 10 November 2017 1. The Applicant's clause 4.6 written request to vary the landscaped areas for residential accommodation in zone R1 is upheld. 2. The Applicant's clause 4.6 written request to vary the floor space ratio is upheld. 3. The Applicant is to pay the Respondents costs under section 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 4. Development consent is granted to D/2016/391 for the partial demolition of an existing hotel, construction of two residential dwellings, conversion of the upper floor of the hotel into a residential dwelling, strata subdivision, excavation to the basement level and insertion of a whisky bar and internal alterations on Lot 1 DP 75122 (known as 31 Cameron Street Birchgrove), subject to conditions in Annexure "A". ……………. D M Dickson Commissioner of the Court Annexure A (C) (566 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: 03 May 2018