Freeman v Inner West Council

[2020] NSWLEC 1282

Land and Environment Court

New South Wales

Medium Neutral Citation:

Freeman v Inner West Council [2020] NSWLEC 1282

Hearing dates:

Conciliation conference on 24 June 2020

Date of orders:

01 July 2020

Decision date:

01 July 2020

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend the modification application to incorporate the Rear Deck Plan prepared by Vaughan Architects dated 22 June 2020 and filed on 24 June 2020.

(2) The appeal is upheld.

(3) Modification Application M/2019/201 to modify Determination No. D/2018/189 189 for alterations and additions to an existing dwelling- house, and associated works, including construction of a new swimming pool at rear, tree removal and replacement of shed at 67 Ballast Point Road, Birchgrove dated 15 April 2019, is approved subject to the amended conditions at Annexure “A” and the development consent as modified is subject to the consolidated conditions contained 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

Leichhardt Local Environmental Plan 2013

Cases Cited:

Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50

Parrott v Kiama Municipal Council [2004] NSWLEC 77

Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155

Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 152; [2006] HCA 63

Texts Cited:

Leichhardt Development Control Plan 2013

Category:

Principal judgment

Parties:

Robert Freeman (First Applicant)
Katrina Freeman (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Patterson (Applicants)
S Turner (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicants)
Inner West Council (Respondent)

File Number(s):

2020/119403

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a determination of the modification application, M/2019/201 of an existing development consent, D/2018/189 approved by Inner West Council (hereafter the Council), which in appeal seeks to amend conditions of consent that relate to alterations to two windows, privacy screening in first and ground floor balconies, and balustrade on a first floor balcony, and reconfiguration of first floor layout, on Lot 1 DP 741486, also known as 67 Ballast Point Road, Birchgrove (hereafter the site).

2. The site is currently occupied by a two-storey residential dwelling under construction and alterations, as approved in D/2018/189 and modified in M/2019/201.

3. This Class 1 appeal is made under ss 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 June 2020, and at which the agreement was filed. I presided over the conciliation conference. There was one objector heard at the conciliation whom raised issues relating to privacy and noise.

5. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Court and to the parties. This decision is to uphold the appeal and grant consent to modify D/2018/189, based on conditions and amended plans relied upon. The parties agree that the issues raised by the objector in submission are resolved to their satisfaction.

6. Pursuant to s 34(3) of the LEC Act, 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 EPA Act to grant consent to modify D/2018/189, with conditions. The proposed works were described to the Court, as shown in the amended plans attached to the s34 agreement, and upon which the Court relies to consent to this agreement.

7. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to consideration under s 4.55(2) of the EPA Act, as the: Leichhardt Local Environmental Plan 2013 (LLEP); and Leichhardt Development Control Plan 2013 (LDCP). The parties agree that the amended plans and conditions of consent relate to the merits of the proposal.

8. The site is zoned R1 General Residential, pursuant to the LLEP. The proposed development with modifications is permissible and consistent with the objectives of the zone. The parties agree that the relevant requirements of the LLEP are satisfied, by the supporting documents and amended plans, to modify the approved consent, as sought under this appeal.

9. Based on the amended plans and supporting documents assessed under this appeal, the contentions and issues raised by the objector that relate to the controls of the LDCP are resolved to the satisfaction of the parties. The respondent confirms that notification of the application under appeal was made pursuant to the LDCP.

10. The parties agree that the proposed modification is substantially the same as previously approved and notified, as required, with issues raised by the resident in submission considered and resolved to their satisfaction. The parties agree that the requirements of s 4.55(2) of the EPA Act are satisfied, in addition to the requirements of ss 4.55 (3) and (4).

11. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the modification sought under this appeal to D/2018/189, based on the amended plans and conditions of consent, satisfies the requirements of s 4.55(2) of the EPA Act.

12. 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.

13. The Court orders:

1. The Applicant is granted leave to amend the modification application to incorporate the Rear Deck Plan prepared by Vaughan Architects dated 22 June 2020 and filed on 24 June 2020.

2. The appeal is upheld.

3. Modification Application M/2019/201 to modify Determination No. D/2018/189 189 for alterations and additions to an existing dwelling- house, and associated works, including construction of a new swimming pool at rear, tree removal and replacement of shed at 67 Ballast Point Road, Birchgrove dated 15 April 2019, is approved subject to the amended conditions at Annexure “A” and the development consent as modified is subject to the consolidated conditions contained in Annexure "B".

…………………………

S Bish

Commissioner of the Court

Annexure A (163594, pdf)

Annexure B (356972, pdf)

**********

Decision last updated: 01 July 2020