Galvin v Waverley Council

[2025] NSWLEC 1437

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Galvin v Waverley Council [2025] NSWLEC 1437

Hearing dates:

Conciliation conference on 13 June 2025

Date of orders:

18 June 2025

Decision date:

18 June 2025

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Modification Application DA-215/2023/A, made pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, is determined by way of approval.

(3) Development Consent No. DA-215/2023 is modified in the terms in Annexure A.

(4) Development Consent No. DA-215/2023 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – alterations and additions to dwelling house – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021, s 113

Category:

Principal judgment

Parties:

Hannah Alice Galvin (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
J Ede (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/471813

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Waverley Council, of the applicant’s request to modify development consent DA-215/2023 at 42 Varna Street, Waverley. The modification application, DA-215/2023/A, requests additional excavation to lower the ground level of the rear private open space, and new sliding doors to the northern wall of the basement gym to provide access to the rear private open space.

2. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. 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 13 June 2025. At this conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties, which involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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 of the EPA Act to modify the development consent that was originally granted consent by the Court.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

6. Pursuant to s 4.55(2) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note:

• The modifications do not introduce any new uses, increase the density, or alter the approved land use or intensity of the development.

• The architectural modifications will not increase the building height or envelope, or create any external visual impacts, and will have no material impact on the streetscape or adjoining properties.

7. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted.

8. No ministerial or other consultation is required pursuant to EPA Act s 4.55(2)(b), as no conditions of the type identified in this clause were imposed on the original consent.

9. The modification application was adequately notified from 6 September to 27 September 2024, during which time no submissions were received (EPA Act s 4.55(2)(c) and (d)).

10. Based on the information contained in the Statement of Environmental Effects, the amended plans and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.55(2) and that all jurisdictional prerequisites have been met.

11. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions and subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

12. The Court notes:

1. The Respondent, Waverley Council, as the relevant consent authority, agrees, under s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application DA-215/2023/A in accordance with the amended plans and additional information being the following documents:

Plan Number and Revision	Plan description	Plan Date	Date received by Council
Amended Architectural Plans prepared by Prime Design Studios of Project No: PDS 041 including the following:
Page 3 of 12, Rev H	Site Plan/ Site Analysis	13.05.2025	16.05.2025
Page 5 of 12, Rev H	Basement Floor Plan	13.05.2025	16.05.2025
Page 6 of 12, Rev H	Ground Floor Plan	13.05.2025	16.05.2025
Page 7 of 12, Rev H	First Floor Plan	13.05.2025	16.05.2025
Page 9 of 12, Rev H	Elevations	13.05.2025	16.05.2025
Page 10 of 12, Rev H	Elevations	13.05.2025	16.05.2025
Page 11 of 12, Rev H	Sections	13.05.2025	16.05.2025
Additional Information
Geotechnical Report (Reference No. G20496-1, Revision B Report) prepared by Geotechnical Consultants Australia dated 16th August 2024
Updated Site Survey Plan prepared by Usher & Company dated 23 April 2025.
Updated Statement of Environmental Effects prepared by Planning Ingenuity dated 27 March 2025.
Position Paper prepared by Planning Ingenuity dated 21 May 2025
Updated Landscape Plan prepared by Tanya Wood Landscape Architecture dated May 2025 and received by Council on 16 May 2025.

Orders

13. The Court orders:

1. The appeal is upheld.

2. Modification Application DA-215/2023/A, made pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979, is determined by way of approval.

3. Development Consent No. DA-215/2023 is modified in the terms in Annexure A.

4. Development Consent No. DA-215/2023 as modified by the Court is Annexure B.

……………………….

E Washington

Commissioner of the Court

Annexure A

Annexure B

**********

Amendments

14 July 2025 - The file number is corrected.

Decision last updated: 14 July 2025