Anglican Community Services v Fairfield City Council

[2023] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Anglican Community Services v Fairfield City Council [2023] NSWLEC 1160

Hearing dates:

Conciliation conference 31 March 2023

Date of orders:

06 April 2023

Decision date:

06 April 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant is granted leave to amend Modification Application No. MA15.3/2019 to rely upon the amended plans and documents which are referenced in Condition 1 of Annexure 'A'.

(2)   The appeal is upheld.

(3) Pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979, Modification Application No. MA15.3/2019 seeking consent to modify Development Consent No. DA15.1/2019 by providing air conditioning units within balconies of the approved 6 storey residential flat building and boarding house at 38 Kenyon Street, Fairfield NSW, is approved and Development Consent No. DA15.1/ 2019 is modified in the terms set out in Annexure ‘A’.

(4)   As a consequence of order (3) Development Consent No. DA15.1/2019 is subject to the consolidated modified conditions in Annexure ‘B’.

Catchwords:

MODIFICATION APPLICATION – Modification to allow for air conditioning – agreement between the parties – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9

Environmental Planning and Assessment Regulation 2021, ss 102, 113, Sch 7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Cases Cited:

Anglican Community Services trading as Anglicare v Fairfield City Council [2019] NSWLEC 1616

Category:

Principal judgment

Parties:

Anglican Community Services (Applicant)
Fairfield City Council (Respondent)

Representation:

Counsel:
R Pleming (Solicitor) (Applicant)
A Foley (Solicitor) (Respondent)

Solicitors:
Allens (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/20960

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal by the Applicant pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) which allows an “applicant for the modification of a development consent who is dissatisfied with the determination of the application by the consent authority” to appeal against that determination. As such, the appeal is against the grant of the application subject to conditions. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.56(2) of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Original Consent approved the following development: Amalgamation of three (3) lots, demolition of existing structures, construction of a 6-storey residential flat building comprising thirty-six (36) dwellings comprising eight (8) in-fill affordable units, eighteen (18) boarding rooms and ten (10) strata units and associated tree removal, landscaping and at-grade car parking containing eighteen (18) car parking spaces at 38 Kenyon Street, Fairfield comprising Lot 100 DP 1268868, Lots 1-10 SP 102324. A condition of that approval, which has been completed, required the amalgamation of the lots and resulted in a new property description for the land. The modification application seeks consent for approval to install 26 air conditioning units within the balconies of the existing residential flat building and boarding house.

3. 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 31 March 2023. I presided over the conciliation conference.

4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application on conditions that are agreed between the parties.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis:

1. Pursuant to s 4.56(1) of the EPA Act the Applicant for the Modification Application is Anglican Community Services. This is the same entity to which the Original Consent was granted by the Court.

2. I am satisfied that given the limited scope of the works sought under the Modification Application I can be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.

3. Pursuant to s 4.56(1)(b) and (c) the Modification Application was notified by the Respondent to nearby and adjoining residents and landowners and on the Respondent’s website for a period of 14 days. No submissions were received.

4. Pursuant to s 4.56(1)(d) no public or agency submissions were received.

5. The modification application is accompanied by an updated BASIX certificate as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

6. Section 102 of the Environmental Planning and Assessment Regulation 2021 (the EPA Regulation) requires a modification application to be accompanied by a statement by a qualified designer, defined at Sch 7 of the EPA Regulation as a person registered as an architect under the Architects Act 2003. The statement, prepared by Mr Luke Romandi, is in a complying form and includes those matters set out at s 102(2) of the EPA Regulation.

7. In determining the application for modification of a consent, I have taken into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. Further, I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified: Anglican Community Services trading as Anglicare v Fairfield City Council [2019] NSWLEC 1616.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders:

8. The Court orders that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant is granted leave to amend Modification Application No. MA15.3/2019 to rely upon the amended plans and documents which are referenced in Condition 1 of Annexure 'A'

2. The appeal is upheld.

3. Pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979, Modification Application No. MA15.3/2019 seeking consent to modify Development Consent No. DA15.1/2019 by providing air conditioning units within balconies of the approved 6 storey residential flat building and boarding house at 38 Kenyon Street, Fairfield NSW, is approved and Development Consent No. DA15.1/2019 is modified in the terms set out in ‘Annexure A’.

4. As a consequence of order (3) Development Consent No. DA15.1/2019 is subject to the consolidated modified conditions in ‘Annexure B’.

D Dickson

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 06 April 2023