Group Architects Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1727

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Group Architects Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1727

Hearing dates:

Conciliation conference on 14 October 2024

Date of orders:

12 November 2024

Decision date:

12 November 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is granted

(2) Development Consent No. DA399/2021/1 is modified in the terms in Annexure A

(3) Development Consent No. DA399/2021/1 as modified by the Court is Annexure B

Catchwords:

MODIFICATION APPLICATION – residential flat building - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 102, 113

Woollahra Local Environmental Plan 2014

Cases Cited:

Group Architects Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1217

Category:

Principal judgment

Parties:

Group Architects Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
D Taylor (Solicitor) (Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/224751

Publication restriction:

Nil

JUDGMENT

1. Commissioner: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court consent (Group Architects Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1217). The modification application was filed with the Court on 18 June 2024.

2. The Court notes that the Respondent, as the relevant consent authority, has approved under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending DA399/2021/3 in accordance with the documents listed below (amended modification application):

Reference	Description	Author	Date
GA2021-027-A100, A101, A102, A200, A201, A300, Issue 9	Architectural Plans	Group Architects	20/09/2024
Solar access diagrams	Group Architects	August 2024
1230437M_04	BASIX Certificate	16 October 2024

3. The proposed modifications are as follows, as stated in the jurisdictional statement:

First Floor Level

Unit 4 – extension of south-eastern kitchen within the approved terrace

Unit 3 – extension of north-eastern kitchen within the approved terrace

Second Floor Level

Unit 2 – extension of south-eastern kitchen within the approved terrace

Unit 3 – removal of north-western terrace, new walk-in-robe, and extension of master bedroom ensuite above first floor entry awning

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 30 September 2024 with subsequent online court communications. I presided over the conciliation conference.

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 parties. This decision involved the Court approving the modification application and modifying the development consent.

6. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 application, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. This is set out below.

9. I am satisfied that owners consent has been provided.

10. Sections 4.55(8) and 4.55(2) of the EPA Act apply to the modification application. I have considered the documentation within the modification application and the parties’ agreed jurisdictional statement. I accept that the proposed minor modifications to small areas of the built form will be substantially the same as the original development (s 4.55(2)(a) of the EPA Act) as they do not change any of the substantive elements of the development or the reasons for the grant of consent.

11. With respect to s 4.55(2)(b), (c) and (d) of the EPA Act, the modification application was notified between 24 July and 8 August 2024. No submissions were received.

12. As the parties have entered into an agreement to modify the consent, the parties have considered the merits of the issues raised.

13. With respect to s 4.55(3) of the EPA Act and the reasons for granting consent, in reviewing the modification application and Group Architects Pty Ltd v Woollahra Municipal Council [2022] NSWLEC 1217, the modification application does not offend the reasons for the grant of consent as they involve modest changes to the built form, mostly to the terraces and kitchens, and also noting that the original Court consent was an agreement between the parties.

14. I accept that the parties have considered s 4.15(1) of the EPA Act as set out in the agreed jurisdictional statement, Statement of Environmental Effects dated 17 June 2024 prepared by GSA Planning and documentation accompanying the modification application.

15. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the modification application and supported by the jurisdictional statement.

Conclusion

16. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

17. I have considered the jurisdictional prerequisites 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.

18. 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.

Orders:

19. The Court orders:

1. The appeal is granted.

2. Development consent No. DA399/2021/1 is modified in the terms in Annexure A.

3. Development consent No. DA399/2021/1 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

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Annexure A

Annexure B

Amendments

19 November 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the Slip Rule), a corrected version of Annexure B has been uploaded.

Decision last updated: 19 November 2024