Wood v Inner West Council [2019] NSWLEC 1498

Land and Environment Court New South Wales

Medium Neutral Citation: Wood v Inner West Council [2019] NSWLEC 1498 Hearing dates: Conciliation conference on 6 June 2019; 17 September 2019; 26 September 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders: (1) The appeal is upheld. (2) Modification Application M/2018/148 for modification of Development Consent D/2017/637 relating to 63-65 Pyrmont Bridge Road, Annandale, granted by the respondent on 17 January 2019 is further modified as set out at Annexure A. (3) As a consequence of (2) above, Development Consent D/2017/637 is now subject to the modified conditions of consent as set out in Annexure B. Catchwords: MODIFICATION APPLICATION – conditions concerning access to car parking – 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: Michael Wood (Applicant) Inner West Council (Respondent) Representation: Counsel: A Perkins (Solicitor) (Applicant) M Bonanno (Solicitor) (Respondent)

Solicitors: Project Lawyers (Applicant) Inner West Council (Respondent) File Number(s): 2019/80874 Publication restriction: No

Judgment 1. COMMISSIONER: Mr Wood made a modification application (M/2018/148) seeking various modifications to development consent D/2017/637 relating to alterations and additions to an existing warehouse building and a change of use to a fitness centre at 63-65 Pyrmont Bridge Road, Annandale. The proposed modifications included internal layout changes, a reduction in the floor area and a variation to vehicular access arrangements. On 17 January 2019, the modification application was granted by Inner West Council ("the Council"), subject to conditions. Mr Wood is dissatisfied with the determination of the application on those conditions, and these proceedings concern an appeal against that determination, 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. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached following a conciliation conference. 2. The specific conditions of the modified consent that were in issue restricted vehicular access to and from the site to Bignell Lane only. In these appeal proceedings, the applicant seeks a variation to the vehicular access arrangements to provide an entry-only access via an existing driveway from Mallett Street and egress-only via an existing driveway onto Bignell Lane. Mallet Street is a local road that traverses in a north-south direction between Booth Street in the north and Parramatta Road in the south. It is subject to a 50km/hr speed zoning and provides a single lane of traffic in both directions. It also permits parallel on-street parking along both sides within the vicinity of the site. 6 Bignell Lane is a laneway that generally traverses in an east-west direction between Mallet Street in the east and, subject to certain works being completed by the Roads and Maritime Services, Pyrmont Bridge Road in the west. 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 June 2019, and continued on 17 and 26 September 2019. I presided over the conciliation conference. 4. Following 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 appeal to be upheld and for the deletion of Deferred Commencement Condition 1(b) and Conditions of Consent 3A(a), 7(c) and 43(a). 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form 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, on the basis that the modifications are confined to conditions concerning vehicular access arrangements and the deletion of some minor kerb and guttering works. 6. 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 LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 7. 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 ss 4.55(3) and 4.15(1) of the EPA Act. 8. The Court orders that: 1. The appeal is upheld. 2. Modification Application M/2018/148 for modification of Development Consent D/2017/637 relating to 63-65 Pyrmont Bridge Road, Annandale, granted by the respondent on 17 January 2019 is further modified as set out at Annexure A. 3. As a consequence of (2) above, Development Consent D/2017/637 is now subject to the modified conditions of consent as set out in Annexure B.