JN Development Management Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1819

Land and Environment Court

New South Wales

Medium Neutral Citation:

JN Development Management Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1819

Hearing dates:

Conciliation conference on 25 and 26 November 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Consent 146/2018 granted on 20 December 2018 (as modified on 23 December 2019) for alterations and additions to approved dwelling including construction of new boat shed, construction of raised planters within the dwelling, removal of trees and new landscape works, at 9 Sutherland Crescent, Darling Point (Lot 2 of DP1189573), is modified by Modification Application 146/2018/4, subject to the conditions of consent at Annexure A.

(3) Development Consent No.146/2018 is subject to the consolidated, modified conditions of consent at Annexure B.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.56

Land and Environment Court Act 1979, ss 34, 34AA

Environmental Planning and Assessment Regulation, s 113

Woollahra Local Environmental Plan 2014, cl 6.4

Cases Cited:

Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31

Elkorr v Woollahra Council [2019] NSWLEC 1000

Category:

Principal judgment

Parties:

JN Development Management Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2024/211663

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal of Modification Application No. 146/2018/4 made pursuant to the provisions of s 4.56 of the EPA Act to modify Development Consent No. 146/2018 granted on 2 January 2019 (Elkorr v Woollahra Council [2019] NSWLEC 1000) (as modified on 23 December 2019) for alterations and additions to approved dwelling including construction of new boat shed, construction of raised planters within the dwelling, removal of trees and new landscape works, at 9 Sutherland Crescent, Darling Point (Lot 2 of DP1189573) (the site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 November 2024. I presided over the conciliation conference. 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. 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. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent.

3. The two modification applications, each to modify a different development consent relating to the same site, were the subject of the conciliation conference on 25 and 26 November 2024. The other appeal is JN Development Management Pty Ltd v Woollahra Municipal Council, File Number 2024/211637.

4. There are preconditions to the exercise of power to modify the development consent.

Amended application

5. The Council, as the consent authority, consented to the amendment of the application pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, to rely on the following plans and documents:

No	Document	Drawing No.	Prepared by	Rev	Date
1.	Architectural Plans
	Level 00	DA215	Woods Bagot	C	25 November 2024
	Elevation N	DA216	Woods Bagot	C	25 November 2024
	Elevation E	DA217	Woods Bagot	B	25 November 2024
	Elevation S	DA218	Woods Bagot	C	25 November 2024
	Section 01	DA220	Woods Bagot	C	25 November 2024
	Materials	DA330	Woods Bagot	C	25 November 2024

Pre-conditions to the grant of consent

6. The relevant terms of s 4.56 of the EPA Act are:

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if—

(a) it is 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 (if at all), and

(b) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, and

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

(1A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

7. Having compared the two developments, the originally approved development and the modified development, I am satisfied that the developments are substantially the same development. The comparison required between the modified development and the originally approved development is a holistic one of the two developments being compared (Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 at [26]).

8. The site is zoned R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for development that is compatible with the character and amenity of the surrounding neighbourhood.

• To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

• To ensure development conserves and enhances tree canopy cover.

9. Clause 6.4 of the LEP 2014 provides that development on the foreshore of Sydney Harbour is permitted subject to it not impacting upon natural foreshore processes or the significance and amenity of the area. Clause 6.4(2) specifies a minimum foreshore building line of 12m. The proposed changes are limited to boundary fencing and the relocation of the ancillary boatshed. The Court would be satisfied that the modifications comply with the foreshore building line prescribed by clause 6.4(2) of the WLEP and satisfies clause 6.4(4) and clause 6.4(5) of the WLEP.

10. I am satisfied that the resident objectors’ concerns raised onsite and in their written submissions have been considered, and that the amendments made to the application are responsive to the matters raised in those submissions.

Conclusion

11. I have considered the submissions made by the Council in the Jurisdictional Statement filed with the Court on 3 December 2024 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.

Orders

12. The orders of the Court are:

1. The appeal is upheld.

2. Development Consent 146/2018 granted on 20 December 2018 (as modified on 23 December 2019) for alterations and additions to approved dwelling including construction of new boat shed, construction of raised planters within the dwelling, removal of trees and new landscape works, at 9 Sutherland Crescent, Darling Point (Lot 2 of DP1189573), is modified by Modification Application 146/2018/4, subject to the conditions of consent at Annexure A.

3. Development Consent No.146/2018 is subject to the consolidated, modified conditions of consent at Annexure B.

Susan O’Neill

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 19 December 2024