Heller v Northern Beaches Council

[2022] NSWLEC 1693

Land and Environment Court

New South Wales

Medium Neutral Citation:

Heller v Northern Beaches Council [2022] NSWLEC 1693

Hearing dates:

Conciliation conference 9 December 2022

Date of orders:

13 December 2022

Decision date:

13 December 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA2021/1790 for alterations and additions to a dwelling house, including a swimming pool and garage at Lot 41 in Deposited Plan 13760, known as 214 Hudson Parade, Clareville, is modified in the terms in Annexure A.

(3) Development Consent No. DA2021/1790 as modified by the Court is Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Environmental Planning and Assessment Regulation 2021, s 113
Land and Environment Court Act 1979, ss 34, 34AA

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Category:

Principal judgment

Parties:

Patrick Heller (Applicant)
Northern Beaches Council (Respondent)

Representation:

M Jaku (Solicitor) (Applicant)
A Gough (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Storey Gough (Respondent)

File Number(s):

2022/225631

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal by the applicant pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal, by Northern Beaches Council (Council), of a modification application made pursuant to s 4.55 of the EPA Act.

2. The modification application (Mod2022/0314) seeks to modify development consent DA2021/1790 which was for alterations and additions to a dwelling house, including a swimming pool and garage, at 214 Hudson Parade Clareville, legally described as Lot 41 in Deposited Plan 13760 (site). A condition in the development consent (Condition 10) required the maximum height of the roof to "Bedroom 4" be lowered by 600mm from what had been proposed in the applicant’s plans. The modification application, as originally lodged, sought approval to amend Condition 10 of the development consent, in order to re-instate the previously proposed roof form above Bedroom 4.

3. The Court arranged a mandatory conciliation conference between the parties under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), which was listed for 9 and 12 December 2022 and at which I was delegated to preside. Prior to the conciliation conference, and after the preparation of amending plans, the parties filed 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.

4. In respect of the amendments, I note the following advice from the parties:

1. Northern Beaches Council as the relevant consent authority has approved, under s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Modification Application No. Mod2022/0314 in accordance with the following:

1. The following amended architectural plans prepared by Utz Sanby Architects:

Drawing No.	Drawing Title	Date
DA-00, Rev C	DA Site Plan / Roof Plan	17 October 2022
DA-02, Rev C	DA Section	17 October 2022
DA-03, Rev C	DA Elevations	17 October 2022

2. BASIX Certificate No. A427961_02 prepared by BASIX Certificate Centre dated 16 November 2022.

2. The amended modification application was lodged onto the NSW planning portal on 30 November 2022.

3. The Applicant has filed the amended modification application with the Court on 6 December 2022.

5. The essential difference of the amended modification application is that the proposed roof above Bedroom 4 would be “flipped” in alignment, such that it has been rotated by 180 degrees. I am advised and have noted that a change of this kind was suggested as an appropriate response to the circumstances by town planning experts in the preparation of a joint report filed with the Court on 27 October 2022.

6. 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.

7. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. By way of an agreed statement of jurisdictional prerequisites dated 6 December 2022, the parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied.

8. In regard to jurisdiction and mindful of the parties’ note, I find as follows:

• Having regard to s 4.55(2)(a) of the EPA Act, 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. In a qualitative sense, the consent as modified would remain of the same description as the development for which the consent was originally granted (alterations and additions to a dwelling house, including a swimming pool and garage). There is no essential element of the development the subject of the development consent that is being altered by the amended modification application. Quantitatively, the amended modification application alters part of one section of the roof of the approved alterations and additions to the dwelling house. Although there is an increase in height of that roof element, it is minor and well under the applicable height limit, and the amended modification application maintains an overall density that is consistent with the approved alterations and additions.

• Having regard to s 4.55(2)(b) of the EPA Act, I am satisfied with the advice of Council that there were no requirements for concurrence from a Minister, public authority or approval body in relation to the proposal.

• Having regard to subss 4.55(2)(c) and (d) of the EPA Act, I am satisfied with the advice of Council that the modification application was notified in accordance with requirements and one objecting submission was received. The amended modification was also notified and a submission was also received in regard to it. I have been provided with copies and considered these submissions, noting the fact that the amendments to the modification directly address the concerns raised.

• Having regard to s 4.55(3) of the EPA Act, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EPA Act, noting the different test applicable here when compared to the evaluation of a development application (noting s 4.55(4) of the EPA Act specifically states the “modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part”). The jurisdictional advice from the parties analyses the applicability of various environmental planning instruments and the applicable development control plan. I have given appropriate consideration to these instruments and nothing of significance arises in regard to them. I have also given consideration to likely impacts, site suitability, submissions and the public interest and again nothing would persuade me against the agreement the parties have come to. Further, in regard to s 4.55(3) of the EPA Act, the parties have drawn my attention to the reasoning behind the consent authority decision for the grant of the consent that is sought to be modified. I have taken this reasoning into account.

9. 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. 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 that:

1. The appeal is upheld.

2. Development Consent No. DA2021/1790 for alterations and additions to a dwelling house, including a swimming pool and garage at Lot 41 in Deposited Plan 13760, known as 214 Hudson Parade, Clareville, is modified in the terms in Annexure A.

3. Development Consent No. DA2021/1790 as modified by the Court is Annexure B.

……………………….

P Walsh

Commissioner of the Court

Annexure A (163651, pdf)

Annexure B (331005, pdf)

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Decision last updated: 13 December 2022