Shellshear v Inner West Council [2021] NSWLEC 1378

Shellshear v Inner West Council [2021] NSWLEC 1378

The Court was satisfied that the agreed approval of DA 201900431 was a decision it could have made in the proper exercise of its functions because the proposal, as amended and subject to agreed conditions, addressed the relevant provisions of SEPP 55, the MLEP, the MDCP, the Draft LEP, heritage requirements and objector issues, and there were no jurisdictional impediments to granting consent under s 4.15(1) and s 4.16 of the EPA Act.

Jurisdiction
Australia
Judgment Date
29 June 2021
Procedural Posture
Class 1 Appeal Against Refusal of Development Application DA 201900431 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Orders Made by Agreement
Outcome
Appeal upheld; development application approved subject to conditions.
Legal Topics
['development Application' 'alterations and Additions' 'change of Use to Food and Drinks Premises With Office' 'permissibility in R2 Low Density Residential Zone' 'heritage Conservation Area' 'remediation of Land' 'conciliation Conference' 'consent Orders']
['planning and Environment Law' 'development Consent'] ['development Application' 'alterations and Additions' 'change of Use to Food and Drinks Premises With Office' 'permissibility in R2 Low Density Residential Zone' 'heritage Conservation Area' 'remediation of Land' 'conciliation Conference' 'consent Orders']

Case Brief

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Procedural Posture

Class 1 Appeal Against Refusal of Development Application DA 201900431 / Conciliation Conference Under S 34 of the Land and Environment Court Act 1979; Orders Made by Agreement

Legal Issues

  1. 1 ["Whether the parties' agreement to uphold the appeal and grant consent to DA 201900431 was a decision 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 proposed development satisfied the relevant requirements of s 4.15(1) and s 4.16 of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed development addressed the relevant provisions of State Environmental Planning Policy No 55—Remediation of Land, the Marrickville Local Environmental Plan 2011, and the Marrickville Development Control Plan 2011.' 'Whether the proposed use as a food and drink premises was permissible on the site in the R2 Low Density Residential zone due to its historical shop use.' 'Whether the proposed development satisfied heritage requirements for the North Kingston Heritage Conservation Area.']

Ratio Decidendi

The Court was satisfied that the agreed approval of DA 201900431 was a decision it could have made in the proper exercise of its functions because the proposal, as amended and subject to agreed conditions, addressed the relevant provisions of SEPP 55, the MLEP, the MDCP, the Draft LEP, heritage requirements and objector issues, and there were no jurisdictional impediments to granting consent under s 4.15(1) and s 4.16 of the EPA Act.

Court Disposition

Appeal upheld; development application approved subject to conditions.

Orders

  • ['Appeal upheld.' 'Development Application DA 201900431 for alterations and additions to the existing building and change of use to a food and drinks premises with office at 182-184 Australia Street, Newtown is approved subject to the conditions at Annexure "A".']