Kalra v Lane Cove Municipal Council

[2024] NSWLEC 1715

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kalra v Lane Cove Municipal Council [2024] NSWLEC 1715

Hearing dates:

Conciliation conference on 1 November 2024

Date of orders:

06 November 2024

Decision date:

06 November 2024

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA10/2023 is modified in the terms in Annexure A.

(3) Development Consent No. DA10/2023 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

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

Lane Cove Environment Plan 2009

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

Cases Cited:

North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468; [1998] NSWSC 163

Texts Cited:

Lane Cove Development Control Plan 2010

Category:

Principal judgment

Parties:

Anoop Kalra (First Applicant)
Sunaina Karla (Second Applicant)
Lane Cove Municipal Council (Respondent)

Representation:

Counsel:
A Sarkis (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Marsden Law Group (Respondent)

File Number(s):

2024/ 283529

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings concern an application made pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) seeking to modify Development Consent No. 10/2023 (“the development consent”) granted by the Respondent on 5 July 2023 for development described as the “demolition of the existing dwelling, construction of a 2-3 storey dwelling with an attached garage, a raised pool and landscaping” on the land at 103 William Edward Street, Longueville.

2. The modification application proposes alterations and additions to the approved dwelling house comprising of the reconfiguration and expansion of the lower ground floor to include a walk-in-robe in Bedroom 5, a media room, 2 additional storage rooms and an additional bathroom, and consequential additional excavation and the relocation of the laundry. No alterations or additions are proposed to the approved ground or first floors.

Conciliation and agreement reached between the parties

3. The Court arranged a conciliation conference between the parties under ss 34AA(2) and 34(1) of the Land and Environment Court Act 1979 (LEC Act). I was appointed to preside. The conference was held on 1 November 2024 after the parties had indicated that an agreement as to the terms of a decision in the proceedings was reached that was acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application, as amended, in accordance with agreed conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Pre-requisites to undertaking the function requested by the parties

5. There are certain pre-requisites which require attention before this function of granting consent to the modification application can be exercised. The parties outlined matters of statutory relevance here in an agreed jurisdictional statement provided to the Court on 31 October 2024. Noting the advice in the parties’ jurisdictional statement, I am satisfied in regard to the matters listed below, noting it is ss 4.55(2) and (3) which provide the frame for the evaluation of modification applications of this kind.

6. Having regard to s 4.55(2) of the EPA Act and mindful of s 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. Here I accept the following agreed advice of the parties (JS par 14):

(a) The fundamental nature and characterisation of the development remains the same, being a dwelling house;

(b) The alterations and additions involve the expansion and reconfiguration of the lower ground floor footprint only;

(c) No changes are proposed to the ground or first floor or any other aspect of the development; and 2 Tabs 6 and 7, Class 1 Application. 3 Tab 4, Class 1 Application. 4 Michael Standley at 446. 4 18033256.1;

(d) The proposed modified development has no substantially different or increased environmental impacts than the approved development.

7. I am advised that consultation and notification, as relevant, has occurred as per the requirements of s 4.55(2)(b) and (c) of the EPA Act. No submissions were received. The requirements of s 4.55(2)(d) of the EPA Act are not triggered.

8. Having regard to s 4.55(3) of the EPA Act, I accept the advice of the parties that due consideration has been given to the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application and the reasons given by the consent authority for the grant of the consent that is sought to be modified. Assisting me here was the detailed material outlined in the parties’ jurisdictional statement, which included reference to relevant provisions of State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021 and Lane Cove Environment Plan 2009 (LCLEP) and reference was also made to Lane Cove Development Control Plan 2010.

9. The parties’ explained how the relevant provisions have been considered, with respect to these instruments, which I accept. Mindful of North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468; [1998] NSWSC 163 at 481 D and subsequent decisions, in regard to this modification application, there is no requirement for positive jurisdictional findings with respect to such planning instruments, as might otherwise be required when evaluating development applications.

10. In respect of s 4.55(3) of the EPA Act, I note and accept the advice of the parties that no specific reasons for the grant of the development consent were specified in the notice of determination dated 5 July 2023.

Conclusion

11. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

13. The Court orders that:

1. The appeal is upheld;

2. Development Consent No. DA10/2023 is modified in the terms in Annexure A.

3. Development Consent No. DA10/2023 as modified by the Court is Annexure B.

.…………………………

P Walsh

Commissioner of the Court

Annexure A

Annexure B

**********

Decision last updated: 06 November 2024