Emag Apartments Pty Ltd v Inner West Council [2019] NSWLEC 1647

Emag Apartments Pty Ltd v Inner West Council [2019] NSWLEC 1647

Because the parties reached agreement at the s 34 conciliation conference, the amended plans addressed the contentions, the development was permissible in the R1 General Residential Zone and consistent with State Environmental Planning Policy (Affordable Rental Housing) 2009, and conditions addressed impacts to adjoining residents, tree retention and objector concerns, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the parties' decision.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA201900028 / Decision and Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application DA201900028 approved subject to conditions in Annexure A; applicant granted leave to amend the development application and ordered to pay agreed costs thrown away.
Legal Topics
['development Application Appeal' 'deemed Refusal' 'infill Affordable Rental Housing' 'residential Flat Building' 'conciliation Conference' 'development Consent Subject to Conditions']
['planning and Environment Law'] ['development Application Appeal' 'deemed Refusal' 'infill Affordable Rental Housing' 'residential Flat Building' 'conciliation Conference' 'development Consent Subject to Conditions']

Case Brief

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of Development Application DA201900028 / Decision and Orders Following Conciliation Conference Under S 34(1) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ['Whether the agreed decision to uphold the appeal and grant development consent subject to conditions was one the Court could make in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979.' 'Whether the amended plans addressed the contentions in the case and supported approval of the development application.' 'Whether the proposed development was permissible in the R1 General Residential Zone and consistent with State Environmental Planning Policy (Affordable Rental Housing) 2009.']

Ratio Decidendi

Because the parties reached agreement at the s 34 conciliation conference, the amended plans addressed the contentions, the development was permissible in the R1 General Residential Zone and consistent with State Environmental Planning Policy (Affordable Rental Housing) 2009, and conditions addressed impacts to adjoining residents, tree retention and objector concerns, the agreed decision was one the Court could make in the proper exercise of its functions and the proceedings had to be disposed of in accordance with the parties' decision.

Court Disposition

Appeal upheld; development application DA201900028 approved subject to conditions in Annexure A; applicant granted leave to amend the development application and ordered to pay agreed costs thrown away.

Orders

  • ['The applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at condition 4 in Annexure A.' "The applicant is to pay the respondent's section 8.15(3) costs thrown away in these proceedings in the agreed amount of $5,500 within 28 days of the...