Ingoal Acquisitions Pty Ltd v Burwood Council [2018] NSWLEC 1244

Land and Environment Court New South Wales

Medium Neutral Citation: Ingoal Acquisitions Pty Ltd v Burwood Council [2018] NSWLEC 1244 Hearing dates: 22 May 2018 Date of orders: 24 May 2018 Decision date: 24 May 2018 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. Leave is granted for the applicant to rely on the amended plans listed at condition (1) of Annexure A. 2. By consent, the appeal is upheld. 3. Development Application No. 2016/187 for the demolition of existing structures and the construction of a three storey residential flat building with attic containing 12 apartments and basement parking for 13 cars, at 21-23 Gladstone Street, Burwood is approved, subject to the conditions of consent at Annexure A. 4. The exhibits, other than exhibits 1 and 4, are returned. Catchwords: DEVELOPMENT APPLICATION: consent orders; residential flat building; adjacent to a local heritage item; contentions addressed by amendments to the proposal. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Ingoal Acquisitions Pty Ltd (Applicant) Burwood Council (Respondent) Representation: Counsel: Ms J. Reid barrister (Applicant)

Solicitors: Lionheart Lawyers (Applicant) Ms R. McCulloch, Pikes & Verekers Lawyers (Respondent) File Number(s): 2017/183539 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2016/187 for the demolition of existing structures and the construction of a residential flat building (the proposal) at 21-23 Gladstone Street, Burwood (the site) by Burwood Council (the Council). 2. The appeal was subject to mandatory conciliation on 9 November 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 30 November 2017, pursuant to s 34(4) of the LEC Act. 3. Leave was granted by the Court on 2 February 2018 for the applicant to rely on the amended proposal. 4. The Court's Practice Note – Class 1 Development Appeals provides, in relation to the consent order hearings: Application for final orders by consent of parties 98. When there is agreement prior to the commencement of a hearing of a development appeal involving a deemed refusal of the application by the consent authority, the Court will usually expect the consent authority to give effect to the agreement by itself granting consent or approval. 99. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. Objectors to the proposal were invited to attend the hearing and two objectors provided a written submission (exhibit 2). 2. The adjoining neighbour, on being advised that the Council intended to enter into consent orders, raised no objection to the proposal but did request a number of conditions regarding the treatment of windows and materials and Ms McCulloch submitted that those conditions, as requested, are included in the conditions of consent at Annexure A or are shown on the architectural drawings at Annexure B. 3. The other objector raised concerns regarding the location of the entry and exit to the basement carpark in Gladstone Street close to the roundabout and that the three storey development "will create a claustrophobic feel to the street". 4. The Council submits that the objections raised by the resident objectors regarding the original proposal have been addressed, to the extent that they can be, by the amendments made to the proposal as shown in the architectural plans (exhibit 4).