Attard v Ku-ring-gai Council

[2022] NSWLEC 1482

Land and Environment Court

New South Wales

Medium Neutral Citation:

Attard v Ku-ring-gai Council [2022] NSWLEC 1482

Hearing dates:

Conciliation conference 31 August and 1 September 2022

Date of orders:

12 September 2022

Decision date:

12 September 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The Appeal is upheld.

(2) Modification Application No. MOD0231/21, to modify Development Application No. DA417/20 granted by the Respondent on 17 May 2021 relating to land at 28 Young Street, Wahroonga (Lot 101 in DP 1278904) and previously known as 35 Water Street, Wahroonga, is determined by the grant of approval subject to the conditions at Annexure A.

(3) Development Consent No. DA417/20 is now in the form of Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environment Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Alexandra Louise Attard (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Drury (Solicitor) (Respondent)

Solicitors:
MacPherson Kelly (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2022/114572

Publication restriction:

No

Judgment

1. COMMISSIONER: These appeal proceedings brought under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) relate to the deemed refusal of modification application number MOD0231/21 (MA) by Ku-ring-gai Council (Council). The MA sought to modify development consent No. DA0417/20 (DA) which granted approval for the Torrens Title subdivision of 35 Water Street, Wahroonga into two lots and construction of a dwelling house, swimming pool, tennis court and associated works on the new lot. The new lot is now legally described (having since been subdivided) as Lot 101 in Deposited Plan 1278904 and commonly known as 28 Young Street, Wahroonga.

2. The changes to the DA proposed in the MA include the following:

1. internal changes, the construction of a new basement parking area;

2. modification of approved driveway to suit,

3. the provision of a lift for access between the basement and the ground floor,

4. conversion of the approved garage to a games room,

5. changes to the northern, western and southern elevations and changes to the external finishes.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. The conference was held on 31 August and 1 September 2022.

4. On 1 September 2022, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application, as amended, in accordance with agreed conditions.

5. In regard to the amendments to the MA, I note that they have been made pursuant to cl 121B of the Environment Planning and Assessment Regulation 2000 and Council has agreed to the amendments. I am advised that the amending plans and documents were lodged on the NSW Planning Portal on 1 September 2022 and filed with the Court on 1 September 2022. The amending material is as described below.

Drawing No and Revision		Title	Prepared by	Date
Architectural Plans
Dwg DA1.01 Rev B	Site Plan	Building Design & Technology Pty Ltd	29 August 2022
Dwg DA1.02 Rev E	Lower Ground Floor Plan		29 August 2022
Dwg DA1.03 Rev D	Ground Floor/Site Plan		6 July 2022
Dwg DA1.04 Rev D	First Floor Plan		6 July 2022
Dwg DA1.05 Rev C	Roof Plan		6 July 2022
Dwg DA1.06 Rev C	Elevations		6 July 2022
Dwg DA1.07 Rev D	Section AA & Front Fence Elevation		29 August 2022
Engineering plan
SW21535 Stormwater plans (Section through driveway and retaining walls), Rev C. DWDP07		BMY Building Consultants	30 August 2022
Reports
Site Analysis	Minto Planning Services	July 2022

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

7. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties’ jurisdictional statement, I am satisfied in regard to the matters listed below.

8. Having regard to s 4.55(2) of the EPA Act:

1. Mindful of subs 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. On this point, I have noted the detailed particulars in the jurisdictional statement summarising both the quantitative and qualitative differences between the development as proposed to be modified and the development as originally approved. I agree with this analysis that the modified development would be quantitatively and qualitatively the same as the development for which the consent was originally granted. The essence of the proposed modification is the construction of a below ground parking area and basement. The modified dwelling house would continue to sit comfortably and discreetly in the streetscape in very similar fashion to the approved dwelling house. It retains its appearance of a contemporary dwelling house, essentially the same as that originally approved.

2. Mindful of subs 4.55(2)(b), I accept the advice of the parties that no conditions imposed on the DA result of concurrence requirements.

3. Mindful of subss 4.55(2)(c) and 4.55(2)(d), Council advises that the MA was notified in accordance with requirements. There were two submissions received which are found at Tabs 15 and 16 of the Respondent’s Bundle of Documents filed with the Court on 26 August 2022 (Respondent’s Bundle), which I have considered in accordance with jurisdictional requirements.

9. Having regard to s 4.55(3) of the EPA Act, I have taken into consideration:

1. 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 (assisting me here were the matters outlined in the parties’ jurisdictional statement, the Draft Assessment Report (Tab 6 of the Respondent’s Bundle), Council’s Statement of Facts and Contentions (Tab 1 of the Respondent’s Bundle) and the evaluative particulars at “Appendix E” of the Joint Planning Report filed on 17 August 2022 (Joint Planning Report).

2. The reasons given by the consent authority for the grant of the consent that is sought to be modified (mindful of nominated reasons in the original consent and Council’s DA assessment report provided at “Annexure C” of the Joint Planning Report).

Conclusion

10. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

12. The Court orders that:

1. The Appeal is upheld.

2. Modification Application No. MOD0231/21, to modify Development Application No. DA417/20 granted by the Respondent on 17 May 2021 relating to land at 28 Young Street, Wahroonga (Lot 101 in DP 1278904) and previously known as 35 Water Street, Wahroonga, is determined by the grant of approval subject to the conditions at Annexure A.

3. Development Consent No. DA417/20 is now in the form of Annexure B.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (159150, pdf)

Annexure B (413645, pdf)

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Decision last updated: 12 September 2022