Garner v Inner West Council

[2025] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:

Garner v Inner West Council [2025] NSWLEC 1144

Hearing dates:

Conciliation conference on 24 February 2025

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent No. 2023/0946 is modified by Modification Application No. 2024/0184, subject to the consolidated conditions of consent at Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 113

Category:

Principal judgment

Parties:

Jeanette Edith Garner (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
M Pearce (Solicitor) (Respondent)

Solicitors:
McLachlan Thorpe Partners (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/319746

Publication restriction:

Nil

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 2024/0184 to modify Development Consent No. 2023/0946 (the development consent) to introduce a roll kerb crossover for access to an approved motorcycle space (the proposal), at 11 Mansfield Street, Rozelle (the site), by Inner West 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 24 February 2025. 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 the development consent.

4. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. The plans and documents comprising the modified development consent are listed at condition 1 of the consolidated conditions of consent at Annexure B.

5. There are preconditions to the exercise of power to modify the development consent.

6. Section 4.55(2)(a) of the EPA Act requires the consent authority, or the Court exercising the functions of the consent authority, to be 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. I am satisfied that the proposed changes to the original development result in a development that is substantially the same development. The proposal introduces a roll kerb crossover for access to an approved motorcycle space. The development remains a consent for alterations and additions to an existing semi-detached, single domestic dwelling.

7. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 24 February 2025 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

8. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent No. 2023/0946 is modified by Modification Application No. 2024/0184, subject to the consolidated conditions of consent at Annexure B.

S O’Neill

Commissioner of the Court

Annexure A

Annexure B

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