LSPCC Pty Ltd v Inner West Council [2018] NSWLEC 1224

Land and Environment Court New South Wales

Medium Neutral Citation: LSPCC Pty Ltd v Inner West Council [2018] NSWLEC 1224 Hearing dates: Conciliation conference on 11 May 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION - subdivision of land and construction of dwelling - 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: LSPCC Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitor: C McJannett, Mills Oakley (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2017/227317 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal by LPSCC Pty Ltd against the deemed refusal of an application made to Inner West Council relating to 382 Livingstone Road, Marrickville, for the demolition of an existing single storey dwelling house, the subdivision of the site from two into five lots and the construction of a 3-storey dwelling on each resulting allotment. The application now seeks consent for part demolition of existing improvements, subdivision from 2 into 3 lots including retention of the existing dwelling house on Lot 1 and construction of a 2 storey with attic dwelling house on the existing Lot B in DP 300155. 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. Leave is granted to the applicant to rely on the amended plans and documents listed in Condition 1 of the conditions attached and marked "A". 2. The applicant to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $2,715 GST inclusive in full and final payment. This Order is entirely separate from the order made by the Court on 2 May 2018. 3. The appeal is upheld. 4. Development Application No. DA0175 for part demolition of existing improvements, subdivide from 2 into 3 lots including retention of the existing dwelling house on Lot 1 and construction of a 2 storey with attic dwelling house on the existing Lot B in DP 300155 at 382 Livingstone Road, Marrickville, is approved subject to the conditions in Annexure "A". ………………………. Joanne Gray Commissioner of the Court Annexure A (229 KB, pdf) Annexure B (1.94 MB, 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: 11 May 2018