Land and Environment Court New South Wales Medium Neutral Citation: Ormond View Pty Ltd v Inner West Council [2019] NSWLEC 1016 Hearing dates: Conciliation conference on 18 January 2019 Date of orders: 18 January 2019 Decision date: 18 January 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: See orders at [12] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Category: Principal judgment Parties: Ormond View Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitors: A Scully, HWL Ebsworth (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2018/172312 Publication restriction: No Judgment 1. COMMISSIONER: Ormond View Pty Ltd (the Applicant) has appealed the deemed refusal by Inner West Council (the Respondent) of its development application 10.2018.17.1 for demolition of an existing house, excavation of the site, and construction of 3-4 storey boarding house containing 37 boarding rooms, one managers room, basement car parking, and landscaping (the proposed development) at 33 Ormond Street, Ashfield (Lot 26, Section 10, DP 439) (the Subject Site). 2. The appeal comes to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), and falls within Class 1 of the Court's jurisdiction. 3. 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 6 December 2018. 4. At a subsequent conciliation conference held on 18 January 2019, over which I presided, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the development application, subject to conditions. 5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties' decision if the Parties' decision is a decision that the Court could have made in the proper exercise of its functions. 6. The Parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There is one jurisdictional prerequisite that must be satisfied before this function can be exercised. The Parties identified during the conciliation conference that the jurisdictional prerequisite of relevance in these proceedings is the requirement under cl 30A of State Environmental Planning Policy (Affordable Rental Housing) 2009, concerning the character of the local area, and which requires that: A consent authority must not consent to development to which this Division applies unless it has taken into consideration whether the design of the development is compatible with the character of the local area. 1. The Parties explained how this jurisdictional prerequisite had been satisfied. In particular they submitted that the bulk and scale, and the part 3/part 4 storey design, of the proposed development, were similar to similar to the bulk, scale and design of other buildings in the local area. They further submitted that the design of the proposed development was consistent with achievement of the objectives of the R3 Medium Density Residential zone applicable to the Subject Site. 2. Having considered the submissions of the Parties, and having also considered the plans illustrating the design of proposed development, and its compatibility with the character of the local area, I am satisfied that the jurisdictional perquisite within cl 30A of SEPP ARH has been fulfilled, and so the power to grant consent, under s 4.16 of the EPA Act, has been enlivened. 3. I am satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the Parties' decision. 5. Consequently, the orders of the Court are: 1. The Applicant is granted leave to rely on amended plans. 2. The Applicant is to pay the Respondent's costs that are thrown away as a result of amending the development application under section 8.15(2) of the Environmental Planning and Assessment Act 1979 in the sum of $9,500, within 28 days. 3. The appeal is upheld. 4. Pursuant to s 8.14 of the Environmental Planning and Assessment Act 1979, development consent is granted for the construction of a 3-4 storey boarding house development containing 37 boarding rooms, managers room, basement car parking and associated landscaping at 33 Ormond Street, Ashfield (being Lot 26, Section 10, DP 439), subject to the Conditions of Consent at Annexure "A". …………………………… M Chilcott Commissioner of the Court Annexure A ********** 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: 21 January 2019