Ivy No. 16 Pty Ltd v Inner West Council

[2023] NSWLEC 1526

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ivy No. 16 Pty Ltd v Inner West Council [2023] NSWLEC 1526

Hearing dates:

Conciliation conference on 14 August 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court Orders that:

(1) The appeal is upheld.
(2) The modification application, seeking alterations and additions to Development Consent D/2017/622, which was granted for an attached dual occupancy development at 6 Wortley Street, Balmain, is modified in the terms set out in Annexure “A”.
(3) Development Consent D/2017/622, as modified by the Court, is at Annexure “B”.

Catchwords:

MODIFICATION APPLICATION – dual occupancy – amended plans – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979,
s 4.55
Environmental Planning and Assessment Regulation 2021, s 100
Inner West Local Environmental Plan 2013, cl 5.10
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Category:

Principal judgment

Parties:

Ivy No. 16 Pty Ltd (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
S Turner (Solicitor)(Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Inner West Council (Respondent)

File Number(s):

2023/144776

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to a modification application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Ivy No. 16 Pty Ltd (Applicant).

2. The modification application seeks to modify a development consent granted by the Court, to make alterations to the approved design, for a partially constructed attached dual occupancy building. Those modifications include:

1. add a second-storey bedroom and bathroom to the of rear Dwelling 6A;

2. delete ensuite bathroom to first-floor Bedroom 1 of Dwelling 6A;

3. new/altered windows W4, W8 (south elevation), W6 (north elevation), W2 (west elevation), W7, W9 (east elevation);

4. minor re-alignment of boundary between Dwelling 6 and Dwelling 6A;

5. minor re-alignment of walls to accommodate access to Sydney Water manhole;

6. raise ground and construction levels of addition and new dwelling by 250mm to allow workable stormwater drainage; and,

7. relocate Dwelling 6 rainwater tank from front veranda to eastern courtyard.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was held on 14 August 2023. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the agreement of the parties if the proposed decision, the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

6. As this is a modification application, pursuant to s 4.55(2)(a) of the EPA Act, I must be satisfied that the development to which the consent as modified relates is “substantially the same” as the development for which consent was originally granted. The parties agree, after both a qualitative and quantitative assessment of the proposed development, that the proposed modification to the development will still result in a development that is substantially the same as the development for which consent was originally granted. On review of the minor amendments made to the application, I am also satisfied that the proposed development, as modified, does not involve a radical transformation of the development and the essence of the development remains the same. It is for these reasons that I am satisfied that the modified application passes the “substantially the same” test for modification applications.

7. The site is located within a heritage conservation area and therefore cl 5.10 of the Inner West Local Environmental Plan 2013 (IWLEP 2013) is relevant in the assessment of the modification application. The parties have considered, pursuant to cl 5.10(4) of the IWLEP 2013, the effect of the proposed development on the heritage significance of the area concerned. The Modification Application is supported by a Heritage Impact Statement, and the parties are satisfied that the Modification Application will not result in adverse heritage impacts to The Valley Heritage Conservation Area.

8. The modification application was notified on 4 July 2023 and, at the end of the notification period, no submissions had been received. Only the parties were present at the site view as part of the conciliation process.

9. A BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.55(3) of the EPA Act.

11. Based on the material provided by the parties, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I am therefore required, under s 34(3) of the LEC Act, to dispose of the proceedings in accordance with the parties’ agreement.

Conclusions

12. The Court orders that:

1. The appeal is upheld.

2. The modification application, seeking alterations and additions to Development Consent D/2017/622, which was granted for an attached dual occupancy development at 6 Wortley Street, Balmain, is modified in the terms set out in Annexure “A”.

3. Development Consent D/2017/622, as modified by the Court, is at Annexure “B”.

S Harding

Acting Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 14 September 2023