Irvin v Griffith City Council

[2025] NSWLEC 1143

Land and Environment Court

New South Wales

Medium Neutral Citation:

Irvin v Griffith City Council [2025] NSWLEC 1143

Hearing dates:

Conciliation conference 7 March 2025

Date of orders:

12 March 2025

Decision date:

12 March 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Consent No DA 105/2021 for the erection of a security fence in association with a truck depot at Lot 2, Deposited Plan No 1189104 (Nos 10-12) Best Street, Griffith is modified in the terms in Annexure A.

(3)   Development Consent No DA 105/2021 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – fence - 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

Category:

Principal judgment

Parties:

Brian Irvin (First Applicant)
Sonya Irvin (Second Applicant)
Griffith City Council (Respondent)

Representation:

Counsel:
P Vergotis (Solicitor) (Applicants)
K Glanville (Solicitor) (Respondent)

Solicitors:
Piper Alderman Lawyers (Applicants)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2024/347174

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a modification application appeal pursuant to
   s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) to DA-105/2021 at 10-12 Best Street Griffith (Lot 2 DP 1189104). The modification application seeks to provide a front fence.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 7 March 2025.  I presided over the conciliation conference.

3. 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 upholding the modification application and modifying the development consent. 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.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

6. 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.

7. I am satisfied that owners consent accompanied the modification application.

8. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept the parties’ agreement that the proposed modifications to provide a front fence are of minimal environmental impact and the resultant development is substantially the same as the original development (subss 4.55(1A)(a) and (b) of the EPA Act).

9. With respect to subss 4.55(1A)(c) and (d) of the EPA Act, the modification application was notified between 16 August 2024 and 30 August 2024. No submissions were received.

10. The parties agree and I accept that the provisions required to be addressed by ss 4.55(1A) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal and supported by the jurisdictional statement. I accept that the parties have considered the reasons given for the grant of consent.

Conclusion

11. 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.

12. 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.

13. 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

14. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA 105/2021 for the erection of a security fence in association with a truck depot at Lot 2, Deposited Plan No 1189104 (Nos 10-12) Best Street, Griffith is modified in the terms in Annexure A.

3. Development Consent No DA 105/2021 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 12 March 2025