Burgess v Inner West Council [2020] NSWLEC 1095

Burgess v Inner West Council [2020] NSWLEC 1095

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because landowner consent had been provided, the site did not require further contamination investigation, dwelling houses were permissible with consent in the R1 General Residential zone, demolition consent was sought, relevant development standards were not exceeded, the heritage conservation area impacts were acceptable, relevant LEP requirements were satisfied, BASIX requirements were met, and submissions had been considered. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to give effect to the parties' agreement.

Jurisdiction
Australia
Judgment Date
10 March 2020
Procedural Posture
Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application D/2019/95 / Orders Following Court Arranged Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; development application D/2019/95 approved subject to conditions in Annexure A.
Legal Topics
['development Application' 'deemed Refusal Appeal' 'residential Dwelling' 'demolition' 'conciliation Conference' 'agreement Between Parties' 'heritage Conservation Area' 'basix' 'remediation of Land']
['planning and Environment Law' 'development Consent'] ['development Application' 'deemed Refusal Appeal' 'residential Dwelling' 'demolition' 'conciliation Conference' 'agreement Between Parties' 'heritage Conservation Area' 'basix' 'remediation of Land']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7 of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application D/2019/95 / Orders Following Court Arranged Conciliation Conference and Agreement Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make the parties' agreed decision in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether development consent should be granted for demolition of existing structures, construction of a new dwelling house and associated works at 40 Rose Street, Birchgrove subject to conditions.']

Ratio Decidendi

The Commissioner was satisfied that the agreed decision was one the Court could make in the proper exercise of its functions because landowner consent had been provided, the site did not require further contamination investigation, dwelling houses were permissible with consent in the R1 General Residential zone, demolition consent was sought, relevant development standards were not exceeded, the heritage conservation area impacts were acceptable, relevant LEP requirements were satisfied, BASIX requirements were met, and submissions had been considered. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to give effect to the parties' agreement.

Court Disposition

Appeal upheld; development application D/2019/95 approved subject to conditions in Annexure A.

Orders

  • ['Leave is granted to the Applicant to rely on the Driveway Detail prepared by McClaren Traffic Engineering dated 11 February 2020 and filed in Court on 11 February 2020, and the amended plans prepared by Benn and Penna Architecture listed in the orders.' 'The appeal is upheld.' 'Development application No....