Blainey North and Associates Pty Ltd v Woollahra Municipal Council

[2019] NSWLEC 1242

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blainey North and Associates Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1242
Hearing dates:	Conciliation conference on 22 May 2019
Date of orders:	04 June 2019
Decision date:	04 June 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1)Leave is granted for the applicant to rely on the amended plans listed in Condition A10 of the conditions set out in Annexure "A". (2)The appeal is upheld. (3)The modification application DA 211/2015/3 to modify development consent DA 211/2015/2 is determined by approval subject to the conditions contained in Annexure "A" for the alteration and additions to existing dwelling house at 28 George Street, Paddington. (4)As a consequence of Order (3), Development Consent No. DA 211/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B".
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Blainey North and Associates Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: S Vatala, Dentons (Applicant) D Le Breton, HWL Ebsworth (Respondent)
File Number(s):	2018/308586
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against conditions imposed by Woollahra Municipal Council in consent of Modification Application DA 211/2015/3 to modify development consent DA 211/2015/2, which sought to amend an existing development consent to allow alterations and additions to a terrace house on Lot 1 DP 906335, also known as 28 George Street, Paddington (the site).

2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Court is required to make a determination pursuant to s 4.55 of the EP&A Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 22 May 2019 in Court. I have presided over the conciliation conferences. There were no objections raised by third parties at the conciliation for this appeal.

4. 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. This decision is to uphold the appeal and grant consent to DA2011/2015/3 with amended conditions, A.7, A.9 and A.10.

5. Under s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(2) of the EP&A Act to grant consent to the MA with amendments to conditions A.7 (delete), A.9 for a ‘charged’ stormwater system; and A.10 to amend plans and supporting documents.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(2) of the EP&A Act, as consistency with the Woollahra Local Environmental Plan 2014 (WLEP), specifically cl 5.10 as it relates to heritage conservation, and the Woollahra Development Control Plan 2015 (WDCP).

7. Specifically, the parties explained that the development is essentially the same as approved under DA 2011/2015 and 2011/2015/3, with no fundamental changes to the functioning of the site as approved. The proposed changes by way of condition are limited to the: replacement of (two) matching skylights and a rear facing dormer window with double hung sash design in the attic; and installation of a (charged) stormwater system capable of addressing 1:10 year storm events. The parties explain that the proposed changes to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified, which satisfies s 4.55(2)(a) of the EP&A Act.

8. The proposed changes to the approved DA do not result in inconsistency with the WLEP, and in particular are consistent with cl 5.10 to conserve heritage significance in the area. The parties have assessed that there is capacity in the (stormwater) system to address any additional flow as needed and that the proposed system is acceptable, consistent with the requirements of Council’s drainage standard AS/NZ 3500.0.

9. Based on the proposed changes, s 4.55(2)(b) of the EP&A Act is not relevant in consideration of the proposed modification of the consent.

10. Council is not required to notify the proposed amendments to conditions of DA 2011/2015/3 which is consistent with the WDCP, and therefore satisfies s 4.55(2)(c) of the EP&A Act.

11. I am therefore satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act 1979.

12. As the parties' decision is a one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act 1979 to dispose of the proceedings in accordance with the parties' decision.

13. The Court orders:

1. Leave is granted for the applicant to rely on the amended plans listed in Condition A10 of the conditions set out in Annexure "A".

2. The appeal is upheld.

3. The modification application DA 211/2015/3 to modify development consent DA 211/2015/2 is determined by approval subject to the conditions contained in Annexure "A" for the alteration and additions to existing dwelling house at 28 George Street, Paddington.

4. As a consequence of Order (3), Development Consent No. DA 211/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure "B".

……………………….

Sarah Bish

Commissioner of the Court

Annexure A 

Annexure B 

Plans 

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Decision last updated: 04 June 2019