Design Studio 407 Pty Ltd v Georges River Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Design Studio 407 Pty Ltd v Georges River Council [2022] NSWLEC 1351

Hearing dates:

Conciliation conference 30 June 2022

Date of orders:

07 July 2022

Decision date:

07 July 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Modification Application MOD2021/0170 is approved and Development Consent No. DA2018/0230, which approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue, Lugarno is modified in the terms in Annexure A.

(3) As a consequence of Order (2) above, Development Consent No. DA2018/0230 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION- conditions of consent required design changes – amended plans – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10
Environmental Planning and Assessment Regulation 2000, cl 121B
Environmental Planning and Assessment Regulation 2021, sch 6 cl 3
Land and Environment Court Act 1979, ss 34AA, 34

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

Category:

Principal judgment

Parties:

Design Studio 407 Pty Limited (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
M Driscoll, Solicitor (Applicant)
J Hewitt, Solicitor (Respondent)

Solicitors:
BCP Lawyers & Consultants (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/92245

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal relates to the Applicant’s modification application MOD2021/0170 (the modification application) for the modification of development consent DA2018/0230 granted by Georges River Council on 2 April 2019 (the consent). The consent approved the extension of a concrete pool deck, the extension of an existing patio and the construction of a series of timber decks in the rear yard of Lot 2 DP 507491, known as 64 Moons Avenue, Lugarno.

2. The consent required the Applicant to make a number of design changes through the imposition of a condition of consent. The modification application seeks to remove this condition as well as the approved timber decks in the rear yard and replace these elements with fill, grass and retaining walls.

3. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 30 June 2021. I presided over the conciliation conference.

4. Prior to the conciliation process, the modification application was amended with the agreement of the Council in accordance with cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a modification application made, but not finally determined, before that date: 2021 Regulation, Sch 6 cl 3. The modification application was made before, but had not been finally determined by, 1 March 2022. The…