Lala Developments Pty Ltd v Yass Valley Council

[2024] NSWLEC 1347

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lala Developments Pty Ltd v Yass Valley Council [2024] NSWLEC 1347

Hearing dates:

Conciliation Conference on 2 and 30 May 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The Modification Application DA165253C, for the modification of Development Consent DA165253 (formerly 5.2016.253.2) as amended, is approved in the terms set out at Annexure B to this judgment.

(3)   The Development Consent DA165253A (formerly 5.2016.253.2), as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure C to this judgment.

Catchwords:

Modification Application – agreement reached

Legislation Cited:

Environmental Planning & Assessment Act 1979, ss 4.55, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

Category:

Principal judgment

Parties:

Lala Developments Pty Ltd (Applicant)
Yass Valley Council (Respondent)

Representation:

Counsel:
C Erskine (Agent) (Applicant)
A Menyhart (Solicitor)(Respondent)

Solicitors:
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2024/21432

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings relate to a modification application made pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (the EPA Act) by Lala Developments Pty Ltd (Applicant). The modification application was lodged to Yass Valley Council (Respondent) on 12 July 2023 and was refused by the Council on 28 September 2023. On 18 January 2024, the Applicant lodged this appeal against the Council’s refusal of the modification application under s 8.9 of the EPA Act.

2. The modification application, as amended on 8 May 2024, seeks development consent:

1. for the use of the fence;

2. to paint the Fence posts black; and,

3. for work to lower and reduce the curve to the horizontal alignment on front courtyard Fence to unit 5 fronting Rose Street.

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 2 May 2024. 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(1A) 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 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.

7. On review of the minor amendments made to the application, I am also satisfied that the proposed development, as modified, involves only a minor change to the development and the essence of the development remains the same. It is for these reasons that I am satisfied that the proposed changes pass the “substantially the same” test for modification applications.

8. The development application was notified to adjoining and nearby landowners and the developer of Fairley Estate in accordance with the community participation requirements of the EPA Act. All matters of relevance raised in the submissions to the modification have been taken into consideration.

9. 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.

10. 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. The final orders to give effect to the parties’ various agreements under s 34(3) of the LEC Act are set out below.

11. The Court notes:

1. That Yass Valley Council, as the relevant consent authority, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to modification application DA165253C (dated 5 May 2024) as set out in the material in Annexure A to this judgment.

12. The Court orders that:

1. The appeal is upheld.

2. The Modification Application DA165253C, for the modification of Development Consent DA165253A (formerly 5.2016.253.2) as amended, is approved in the terms set out at Annexure B to this judgment.

3. The Development Consent DA165253A (formerly 5.2016.253.2), as modified by the Court, is subject to the consolidated conditions of Development Consent set out in Annexure C to this judgment.

Stuart Harding

Acting Commissioner of the Court

2024.21432 (Annexure A)

2024.21432 (Annexure B)

2024.21432 (Annexure C)

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Decision last updated: 25 June 2024