Han v Cumberland Council

[2020] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation:

Han v Cumberland Council [2020] NSWLEC 1152

Hearing dates:

Conciliation conference on 6 March 2020

Date of orders:

01 April 2020

Decision date:

01 April 2020

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

See orders at [7]

Catchwords:

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

Legislation Cited:

Auburn Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

Cases Cited:

Han v Cumberland Council [2017] NSWLEC 1544

Category:

Principal judgment

Parties:

Weiguo Han (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

 

Solicitors:

  Cumberland Council (Respondent)

File Number(s):

2019/103689

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, involve an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of a modification application under s 4.56(1) of the EP&A Act.

2. On 28 September 2017, following and pursuant to an agreement under s 34 of the Land and Environment Court Act 1979 (LEC Act), the Court made orders in Proceedings No. 2017/110979 approving Development Application No. 247/2015 (‘DA 247/2015’) for the demolition of existing buildings, tree removal, construction of 22 x 2 storey townhouses over basement parking, strata subdivision, landscaping and associated stormwater works at 159-165 John Street, Lidcombe (Han v Cumberland Council [2017] NSWLEC 1544 (‘Han’)).

3. The application before the Court at present seeks to modify the consent issued in regard to DA 247/2015, principally by increasing the total number of dwellings to 24, along with some associated changes. These associated changes involve: modification of internal and external building layouts, addition of attic levels to each dwelling and changes to the basement parking.

4. The matter came before me as the Duty Commissioner on 6 March 2020 as a Court arranged conciliation conference, under s 34(1) of the LEC Act, at the parties’ request. At the conciliation conference, the parties provided evidence of an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.56(1)(a) of the EPA Act. The parties provided a “Statement of Reasons” which listed the applicable jurisdictional factors and how they have been satisfied. I have considered the statement of reasons and have come to my own conclusions in regard to the key jurisdictional questions.

6. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified. In that:

• The modification does not result in a radical transformation of the development and I believe the development, before and after the proposed changes, can reasonably be seen as “essentially or materially” the same.

• I agree with the parties that in a qualitative sense the development after the proposed modification would be substantially the same as that proposed with the original consent, in that: the physical appearance of the original consent is very similar to the proposed modified development. The street elevation is almost exactly the same but for some minor changes to the roof form. The potential impacts on amenity to surrounding properties are also very similar.

• I also agree with the parties that in a quantitative sense the development after the proposed modification would be substantially the same as that proposed with the original consent, in that: the proposed building height remains the same and compliant with the building height development standard. The proposed modification application increases the gross floor area by 365.5m2 but the proposed development remains compliant with the floor space ratio development standard.

7. I am also satisfied on the advice of the parties that the requirements of s 4.56(1)(b)-(d) of the EPA Act, in regard to notification, have been met. Council’s Statement of Environmental Effects filed 10 May 2019 indicates that no submissions were received during the exhibition period from 4 to 18 December 2018, and that re-notification of the amendments was not deemed necessary.

8. Insofar as the requirements of s 4.56(1A) of the EPA Act are concerned, I have taken into consideration the decision of the Court in Han, the conditions to the subsequent development consent, and the nominated reasons for such conditions. I have also given attention to the relevant requirements under s 4.15(1) of the EPA Act. In that regard I note that a BASIX Certificate was submitted with the application. In regard to the applicable Auburn Local Environmental Plan 2010 (LEP), I have had regard to the objectives to the applicable R3 zone and note the advice of the parties that the modified proposal would not breach development standards contained in the LEP. Clause 6.5 of the LEP requires the consent authority to be satisfied of access to various essential services. The Council is satisfied that essential services are available or can be made available, and on that basis so am I.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. 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.

10. The Court orders:

1. Leave is granted to the Applicants to amend the development application to rely on the following plans:

Plan / Doc No.	Description	Prepared By	Rev	Dated
A0.01	Demolition Plan	Moma Architects	A11	19/12/19
A0.03	Site/Roof Plan	Moma Architects	A11	19/12/19
A1.00	Basement Plan	Moma Architects	A11	19/12/19
A1.01	Ground Master Plan	Moma Architects	A11	19/12/19
A1.02 As amended refer to Condition 118	1st Floor Plan	Moma Architects	A11	19/12/19
A1.03 As amended refer to Condition 118	Attic Plan	Moma Architects	A11	19/12/19
A2.0 As amended refer to Condition 118	Primary Elevations	Moma Architects	A11	19/12/19
A2.01	1st and 2nd Path Elevations	Moma Architects	A11	19/12/19
A2.02	Third Path Elevations	Moma Architects	A11	19/12/19
A3.00	Sections	Moma Architects	A11	19/12/19
A5.00	Pre & Post Adaptable Typical Unit	Moma Architects	A11	19/12/19

2. The appeal is upheld.

3. Modification Application No. DA-247/2015/A to modify Development Consent No. 247/2015 for the purposes of a multi dwelling housing development at 159-165 John Street, Lidcombe is determined by approving the modifications as set out in Annexure A.

4. As a consequence or 2.3 above, Development Consent No. 247/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure B.

……………………….

P Walsh

Commissioner of the Court

Annexure A (56.5 KB)

Annexure B (236 KB)

Plans (1.77 MB)

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Decision last updated: 02 April 2020