Navarra Group Pty Ltd v Inner West Council [2019] NSWLEC 1134

Land and Environment Court New South Wales

Medium Neutral Citation: Navarra Group Pty Ltd v Inner West Council [2019] NSWLEC 1134 Hearing dates: Conciliation conference on 28 March 2019 Date of orders: 28 March 2019 Decision date: 01 April 2019 Jurisdiction: Class 1 Before: Walsh C Decision: See [14] 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 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy No 55—Remediation of Land Category: Principal judgment Parties: Navarra Group Pty Ltd (Applicant) Inner West Council (Respondent) Representation: Solicitors: G Hartley, Hartley Solicitors (Applicant) M Bonanno, Inner West Council (Respondent) File Number(s): 2017/384832 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 ('EPA Act') against the Respondent's refusal of development application D/2017/245 for demolition of existing dwelling and construction of a multi-dwellings development comprising three dwellings with basement parking at 69 Church Street, Lilyfield ('site'). The site is also described as Lot 1 in DP 59686. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 28 March 2019. I presided over the conciliation conference. 3. At the conciliation conference, the parties evidenced that they had come to 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 development consent to the development application subject to conditions. 4. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties advised there are no jurisdictional prerequisites that must be satisfied before this function can be exercised. 5. I have had regard to the objectives of the applicable R1 General Residential zoning under Leichhardt Local Environmental Plan 2013 (LEP) and note that 'Multi dwelling housing' is permissible on the subject site. In accordance with the advice of the parties, there is no breach of development standards contained in the LEP with this application. 6. In regard to cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I have considered whether the land is contaminated and note the requirements in regard to remediation as nominated in Condition 3. 7. I note that the site is encumbered by a Restriction as to User applying to an irregular area adjacent to the western property boundary. The Restriction provides: "No part of the said land shall be used for any purpose other than open space pursuant to the County of Cumberland Planning Scheme or any future Interim Development Order of prescribed Planning Scheme by which it may be superseded." 1. A relatively small portion of the development, areas of balcony and the associated covering, falls within the area covered by the restriction. I note the advice from Council that it is the beneficiary of the restriction and it supports approval of the development as is. 2. The parties advice in respect to this aspect as follows: "Clause 1.9A (1) of the Leichhardt Local Environmental Plan 2013 states: For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. Clause 1.9A has effect pursuant to section 3.16 of the Environmental Planning & Assessment Act 1979. To this extent, any use that is permitted by the LEP overrides the Restrictions stated in the Covenant. Further, the works proposed within the area of the Restriction, namely parts of decking and overhangs of balconies are not uses inconsistent with the use of the land as open space under the County of Cumberland Planning Scheme." 1. It is clear that the Council, the beneficiary of the restriction, has given due attention to the issue, and I accept the above advice. 2. I have also considered the submissions from objectors and note the amendments to the proposal in response to these concerns, as accommodated in amending plans referenced in the Orders. 3. I agree with the advice of the parties that this is a decision that the Court could have made in the proper exercise of its functions. Therefore, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 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. 5. The Court orders: 1. The applicant is granted leave to amend the application and rely on the architectural plans listed under Condition 1 of the conditions of consent in Annexure 'A'. Copies of the plans are at Annexure 'B'; 2. For the purposes of section 8.15(3) of the Environmental Planning and Assessment Act 1979, Applicant is to pay the Respondents costs in the order of $7,000 within 28 days. 3. The appeal is upheld; and 4. Development application number D/2017/245 for demolition of existing dwelling and construction of a multi-dwellings development comprising three dwellings with basement parking is approved subject to the conditions in Annexure 'A'