Baudinet v Lake Macquarie City Council

[2023] NSWLEC 1378

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baudinet v Lake Macquarie City Council [2023] NSWLEC 1378

Hearing dates:

Conciliation conference on 28 June 2023

Date of orders:

18 July 2023

Decision date:

18 July 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No 1903/2020 is modified by Modification Application No DA/1903/2020/A, for minor amendments to the approved development to change the design of part of the roof, at 25 Hale Street, Catherine Hill Bay NSW 2281 (legally known as Lot 101 in DP 1194707), subject to the consolidated conditions of consent at Annexure A.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.9, 4.47, 4.55

Land and Environment Court Act 1979 ss 34, 34AA, 39

the Environmental Planning and Assessment Regulation 2021 s 113

Lake Macquarie Local Environmental Plan 2004, cl 72

Lake Macquarie Local Environmental Plan 2014, cl 1.3

Heritage Act 1977, s 57

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

Brauce Baudinet (First Applicant)
Lindsay Baudinet (Second Applicant)
Lake Macquarie City Council (Respondent)

Representation:

Counsel:
R Lancaster SC (Applicant)
L Beale (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks (Respondent)

File Number(s):

2022/392911

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No DA/1903/2020/A, for minor amendments to the approved development to change the design of part of the roof (the proposal), at 25 Hale Street, Catherine Hill Bay (the site), by Lake Macquarie City Council (the Council).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 June 2023. I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify Development Consent No DA/1903/2020 (the development consent) granted conditionally on 7 June 2021.

4. There are preconditions to the exercise of power to modify the development consent for the proposal.

Amended Plans

5. The Council, as the consent authority, consented to the amendment of the application under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to incorporate the plans and documents listed in the consolidated conditions of consent at Annexure A.

Jurisdictional pre-requisites

6. The site is zoned E2 pursuant to Lake Macquarie Local Environmental Plan 2004 (LEP 2004) (cl 1.3 of Lake Macquarie Local Environmental Plan 2014 identifies the site as a deferred area). The site is within the South Wallarah Peninsula site area under Pt 11 of LEP 2004. The objectives of the E2 zone, at cl 72 of LEP 2004, are:

(a) to protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values,

(b) to prevent development that could destroy, damage or otherwise have an adverse effect on those values.

7. The site is within the Wallarah Heritage House Precinct. Wallarah House burnt down in the bushfires in 2013.

8. The original development application was referred to the Heritage Council of NSW as integrated development under s 57(1) of the Heritage Act 1977. The Heritage Council provided general terms of approval which were imposed as conditions on the development consent. The Council is required to consult with the Heritage Council regarding the application, pursuant to s 4.55(2)(b) of the EPA Act. The Council referred the application to the Heritage Council on 18 October 2022, and the Heritage Council refused to grant general terms of approval on 21 December 2022. The Council re-referred the application to the Heritage Council on 6 June 2023 after additional information was provided, and the Heritage Council resolved not to take any further action in relation to the application.

9. The Council submits that pursuant to s 4.47(4) of the EPA Act, if the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. The Council submits that the individual heritage expert’s report is supported.

10. The application includes an individual heritage expert report prepared by Graham Brooks and dated May 2023 (the report). I accept the conclusion of the report, as follows:

“The proposal amendment [sic] to the roof composition of the replacement Wallarah House will have no identifiable adverse outcomes from those already embedded in the approval of [the development consent].”

11. Pursuant to s 39(6)(a) of the LEC Act, the Court may determine the appeal whether or not the concurrence or approval of, in this case the Heritage Council, has been granted. On the basis of all of the evidence before me, I am satisfied that the proposal will have an acceptable impact on the identified heritage significance of the site and the precinct.

12. I accept the Council’s submission and based on the evidence before me, I am satisfied that the site is suitable for the development as modified, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

13. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, pursuant to s 4.55(2)(a) of the EPA Act, because the changes proposed to the roof are minor.

Conclusion

14. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 28 June 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

15. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No 1903/2020 is modified by Modification Application No DA/1903/2020/A, for minor amendments to the approved development to change the design of part of the roof, at 25 Hale Street, Catherine Hill Bay NSW 2281 (legally known as Lot 101 in DP 1194707), subject to the consolidated conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

**********

Decision last updated: 18 July 2023