Hancox v Inner West Council [2018] NSWLEC 1646

Land and Environment Court New South Wales

Medium Neutral Citation: Hancox v Inner West Council [2018] NSWLEC 1646 Hearing dates: Conciliation conference on 30 October 2018 Date of orders: 13 December 2018 Decision date: 13 December 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [6] below Catchwords: MODIFICATION APPLICATION – boarding house - appeal - 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: Terence Hancox (Applicant) Inner West Council (Respondent) Representation: Solicitors: D Briggs, D.G. Briggs & Associates (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/121414 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal against the refusal by Inner West Council of a modification application (DA201300186.03) to carry out ground and first floor alterations and additions to the approved boarding house at 60 Reiby Street Newtown and to increase the number of rooms. The appeal is lodged pursuant to s 8.9 of 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 modification application pursuant to s 4.55(2) 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 30 October 2018. I presided over the conciliation conference. 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 the modification application subject to conditions, pursuant to s 4.55(2) 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 on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, as the modification application merely involves the reconfiguration of the rooms within the boarding house. 4. 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)). 5. 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 4.55(3) of the EPA Act. 6. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of Annexure 'A'. 2. The appeal is upheld. 3. Modified Development Application DA201300186.04 for ground and first floor alterations and additions to the approved boarding house to increase the number of rooms from 7 to 8 is approved subject to the conditions at Annexure 'B' ………………………. Commissioner Gray Annexure A (72.5 KB, pdf) Annexure B (153 KB, pdf) Plans (262 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: 13 December 2018