Panorama (No 1) Pty Ltd ATF Panorama (No 1) Fixed Unit Trust v Inner West Council [2020] NSWLEC 1074 (20 February 2020)

Last Updated: 20 February 2020

Land and Environment Court New South Wales

Case Name:	Panorama (No 1) Pty Ltd ATF Panorama (No 1) Fixed Unit Trust v Inner West Council
Medium Neutral Citation:	[2020] NSWLEC 1074
Hearing Date(s):	Conciliation conference on 6 February 2020
Date of Orders:	20 February 2020
Decision Date:	20 February 2020
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely on the amended architectural plans prepared by Christopher Jordan Architecture and Design (referred to in Condition 4 of the conditions of consent contained at Annexure A). (2) The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the amount of $22,000 within 28 days by cheque. (3) The appeal is upheld. (4) Development Application DA2018/149.1 for the demolition of existing structures and construction of a new boarding house and basement parking at land known as 9 Victoria Road, Ashfield (otherwise known as Lot B in DP 928863) is approved subject to the conditions contained in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – proposed boarding house – amended plans – conciliation agreement – orders made
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2004 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Panorama (No 1) Pty Ltd ATF Panorama (No 1) Fixed Unit Trust (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) G Farland (Respondent) Solicitors: Mills Oakley (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/308556
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: The Applicant lodged Development Application No. 10.2018.149.1 on 16 August 2018. As amended, the Applicant seeks consent for demolition of the existing dwelling house, excavation, construction of a one level basement and construction of a 20 room boarding house. The development is proposed at 9 Victoria Street, Ashfield.
2. Following the expiration of the deemed refusal period, the Applicant filed an appeal with the Court in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
3. In exercising the functions of the consent authority on appeal, the Court has power to determine the development application pursuant to s 4.15 of the EPA Act.
4. The matter was originally listed for hearing on 5 February 2020. At the request of the parties and by consent, 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 February 2020. By agreement of the parties, the matter is to be disposed of as an agreement under s 34(3) of the LEC Act and the scheduled hearing was vacated. The decision agreed upon is to uphold the appeal and to grant development consent subject to consent conditions.
5. The amendments made to the application for which consent is granted include:
   • A reduction in the number of boarding rooms to 20, resulting from the deletion of one storey of the development.
   • Deletion of the previously proposed car stacker and car share vehicle parking.
   • Relocation of the proposed driveway to be wholly outside the right of carriageway.
   • The reconfiguration of the elevations and a reduction in the number of roof dormers.
   • Introduction of a pitched roof (replacing a previously flat roof) to the rear building element.
6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (that being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:
   • Landowners consent was provided by the owner of the land at the time of the lodgement of the Development Application.
   • The proposed development satisfies cl 26 of State Environmental Planning Policy (Affordable Rental Housing) 2004 (SEPP ARH).
   • The proposed development satisfies the standards detailed at cl 30 of SEPP ARH.
   • I accept the agreement of the parties that the development, as modified, is compatible with the character of the local area: cl 30A SEPP ARH.
   • State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The development is accompanied by a BASIX certificate (949264M).
   • With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I accept the position of the parties that the site has a long history of residential use (since the early 1940’s) and does not require further specific investigation.
   • The original application was notified in accordance with the relevant development control plan and the submissions have been considered. The parties agree that the amended plans are responsive to the objections and of lesser environmental impact negating the need for re-notification.
7. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under cl 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application under the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
9. The orders of the Court are:
   • (1) The Applicant is granted leave to rely on the amended architectural plans prepared by Christopher Jordan Architecture and Design (referred to in Condition 4 of the conditions of consent contained at Annexure A).
   • (2) The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, agreed in the amount of $22,000 within 28 days by cheque.
   • (3) The appeal is upheld.
   • (4) Development Application DA2018/149.1 for the demolition of existing structures and construction of a new boarding house and basement parking at land known as 9 Victoria Road, Ashfield (otherwise known as Lot B in DP 928863) is approved subject to the conditions contained in Annexure A.

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D M Dickson

Commissioner of the Court

Annexure A (163 KB, pdf)

Plans (2.00 MB, pdf)