Geeves v Inner West Council

[2022] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:

Geeves v Inner West Council [2022] NSWLEC 1172

Hearing dates:

17 March 2022, 24 March 2022, 29 March 2022.

Date of orders:

29 March 2022

Decision date:

01 April 2022

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court Orders:

(1) That the appeal is upheld.
(2) The application as amended to modify development consent no. DA201800290 in the terms set out in Annexure A is approved.
(3) The terms of the consolidated Development Consent No. DA 201800290 are set out in Annexure B.
(4) All exhibits are to be returned upon publication of these reasons.

Catchwords:

MODIFICATION APPLICATION – deemed refusal – provision of on-site parking – internal garage to front facade

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9
Environmental Planning and Assessment Regulation 2000, cl 121B(1)

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Kent Geeves (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
P. Rigg (Applicant) (Solicitor)
G. Christmas (Respondent) (Solicitor)

Solicitors:
P. Rigg (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/305057

Publication restriction:

No

Judgment

1. On 29 March 2022 I gave oral judgement on this matter and approved this modification application. At the time I indicated I would provide my written reasons, and these are those reasons.

2. The applicant, Kent Geeves, lodged an application with Inner West Council (the Council) to modify development consent DA201800290 relating to land known as 50-52 Wells St Street, Newtown (Modification Application MOD/2021/0279).

3. The original development consent was granted on 30 January 2019 for the demolition of an existing single storey house with an attached garage constructed over two existing lots, and the construction of a semi-detached one and part-two storey dwelling on each of the existing lots. Both dwellings as approved incorporate a habitable room (a bedroom) and front door facing the street and have no side or rear access for vehicles.

4. Modification application MOD/2021/0279 seeks approval under s 4.55(2) of the Environmental Planning and Assessment Act (EPA Act) for:

1. Construction of an internal garage to the western dwelling at 52 Wells Street

2. Internal changes to the layout of the bathroom and laundry for both dwellings

3. Change in levels at ground floor for both dwellings; and

4. Inclusion of skylights for both dwellings.

5. These proceedings arise as the result of the deemed refusal of this modification application and are brought under s 8.9 of the EPA Act.

6. The Council have submitted that they have no objection to modifications 2, 3 and 4 listed above, and only contest the construction of the internal garage at 52 Wells St (modification 1 listed above).

7. Subsequently, the focus of the case and evidence given was on the garage, which was controversial having regard to the fact that it was contrary to the Marrickville Development Control Plan 2011 (MDCP), principally Pts 4.1.7 and 2.9. As it happened, when given the opportunity, the applicant elected to amend the application and remove the garage. The Council was accepting of this amendment, and the amended application was uploaded on to the NSW Planning Portal and produced to the Court.

8. The amended application subsequently before the Court contains the following modifications:

1. Internal changes to the layout of the bathroom and laundry for both dwellings

2. Change in levels at ground floor for both dwellings; and

3. Inclusion of skylights for both dwellings.

9. Noting that these minor modifications are accepted by the Council, are of minimal environmental impact and result in a development that is substantially the same as the approved DA, I also, after careful consideration pursuant to the requirements of EPA Act s 4.15 find that the amended application has merit. I further note that the modification application was notified to surrounding owners and occupants, and I have taken into account the two letters of objections received in my assessment.

Conclusion and orders

10. As the application before the Court is acceptable to both the respondent and the Court, I made the following orders at the conclusion of proceedings on 29 March 2022.

11. The Court notes:

1. Inner West Council, as the relevant consent authority, has agreed under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the application for modification of the development consent granted by Inner West Council on 30 January 2019 by DA201800290.

2. Inner West Council has uploaded the amended modification application on the NSW Planning Portal on 28 March 2022.

3. The amended modification application MOD/2021/0279 has been filed with the Court on 29 March 2022.

12. The Court orders:

1. That the appeal is upheld.

2. The application as amended to modify development consent no. DA201800290 in the terms set out in Annexure A is approved.

3. The terms of the consolidated Development Consent No. DA 201800290 are set out in Annexure B.

4. All exhibits are to be returned upon publication of these reasons.

……………………….

E Washington

Acting Commissioner of the Court

Annexure A (74336, pdf)Annexure_B (267033, pdf)

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Decision last updated: 01 April 2022