Land and Environment Court New South Wales Medium Neutral Citation: Conca D'Oro Lounge Pty Ltd v Inner West Council [2018] NSWLEC 1596 Hearing dates: Conciliation conference on 16 November 2018 Date of orders: 16 November 2018 Decision date: 16 November 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [6] below Catchwords: DEVELOPMENT APPLICATION – outdoor seating for café use - conciliation conference - agreement between the parties - orders Legislation Cited: Crown Lands Act 1989 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 Category: Principal judgment Parties: Conca D'Oro Lounge Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitors: G Hartley, Hartley Solicitors (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/103051 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Conca D'Oro Lounge Pty Ltd against the actual refusal by Inner West Council of a development application (No. D/2017/285) for the use of part of the Le Montage function centre as a cafe with associated outdoor seating at 38-42 Frazer Street, Lilyfield (Lot 1 DP 722971, Lot 5 Sec G DP 975479, Lot,10 DP 8273 and Lot 555 & 559 DP 752049). The appeal is lodged pursuant to s 8.7 to the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 ("LEC Act") between the parties, which was held on 16 November 2018. I presided over the conciliation conference. Prior to the conciliation conference, the development application was amended by excluding the portion of the outdoor café seating that is within the foreshore area from the land the subject of the development application. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. As the presiding Commissioner, I was satisfied that the decision was one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction for the following reasons: * The café use is a permissible use in the R1 – General Residential and RE1 – Public Recreation zones pursuant to the Leichhardt Local Environmental Plan 2013. * Owners consent for the development application has been obtained from the Minister administering the Crown Lands Act 1989 with respect to that portion of the site the subject of the application that is owned by the State of New South Wales. * The development application, as amended, does not seek consent for use of the land in the foreshore area (in which use for the purposes of restaurants or cafés is not permissible pursuant to cl 6.5(2) of the Leichhardt Local Environmental Plan 2013). 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders: 1. Appeal upheld; 2. Development application number D/2017/285 to regularise the use of the existing café at the south-western portion of Le Montage is approved subject to the conditions in Annexure 'A'; and 3. The applicant is to pay the Respondents costs for the sum of $1,000.00. pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). ………………………. J Gray Commissioner of the Court Annexure A (301 KB, pdf) Amendments 30 November 2018 - Corrections made to Cover Sheet - Legislation Cited, Cases Cited and Texts Cited 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: 30 November 2018