Davis v Inner West Council [2021] NSWLEC 1781

Davis v Inner West Council [2021] NSWLEC 1781

Because the jurisdictional prerequisites were satisfied, the retention of the internal shower was permissible, of minimal environmental impact and did not make the studio a secondary dwelling, and the agreed conditions addressed Council's concerns, the parties' decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Class 1 Proceedings Concerning a Building Information Certificate Appeal and a Modification Appeal / Orders Made Following S 34 Conciliation Conference Agreement
Outcome
Both appeals upheld; Modification Application MOD/2021/0453 approved; Development Consent No. D/2015/592 modified; Inner West Council directed to issue the Building Information Certificate.
Legal Topics
['building Information Certificate' 'modification Application' 'development Consent Conditions' 'conciliation Conference' 'secondary Dwelling']
['environmental Planning and Development' 'land and Environment'] ['building Information Certificate' 'modification Application' 'development Consent Conditions' 'conciliation Conference' 'secondary Dwelling']

Case Brief

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Procedural Posture

Class 1 Proceedings Concerning a Building Information Certificate Appeal and a Modification Appeal / Orders Made Following S 34 Conciliation Conference Agreement

Legal Issues

  1. 1 ['Whether the Court should uphold the modification appeal and approve Modification Application MOD/2021/0453 to modify Development Consent No. D/2015/592 to allow retention of the shower subject to conditions.' 'Whether the Court should uphold the Building Information Certificate appeal and direct Inner West Council to issue Building Information Certificate No. BC/2021/0012.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether the studio above the garage would be used or classified as a secondary dwelling.']

Ratio Decidendi

Because the jurisdictional prerequisites were satisfied, the retention of the internal shower was permissible, of minimal environmental impact and did not make the studio a secondary dwelling, and the agreed conditions addressed Council's concerns, the parties' decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with the agreement.

Court Disposition

Both appeals upheld; Modification Application MOD/2021/0453 approved; Development Consent No. D/2015/592 modified; Inner West Council directed to issue the Building Information Certificate.

Orders

  • ['In relation to proceedings No. 2021/343776, the appeal is upheld.' 'Modification Application MOD/2021/0453 which seeks to modify development consent No. D/2015/592 to amend conditions 1, 2 (f) and 51 to allow for retention of the shower, is approved.' 'Development Consent No. D/2015/592 is modified by the Court as...