Latimer v Shoalhaven City Council

[2019] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:	Latimer v Shoalhaven City Council [2019] NSWLEC 1424
Hearing dates:	Conciliation conference on 29 August 2019
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: Leave is granted to the Applicant to rely on the following plans that are the subject of Modification Application No. DS2018/1343: Architectural Plans Prepared by Hotondo Homes job no. NEST1539 amended 29/08/2019 sheets 1 to 9. The appeal is upheld. Development Consent No. DA14/2580 for demolition of existing cottage and erection of an attached dual occupancy at Lot 4 DP 16055, 8 Admiralty Crescent Huskisson is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”. As a consequence of order 2.3, Development Consent No. DA14/2580 is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.
Catchwords:	MODIFICATION APPLICATION: conciliation conference; agreement between the parties; orders; use of unauthorised works; privacy and view loss mitigation
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Shoalhaven Local Environmental Plan 2014
Texts Cited:	Shoalhaven Development Control Plan 2014
Category:	Principal judgment
Parties:	Paul Latimer (Applicant) Shoalhaven City Council (Respondent)
Representation:	Solicitors: M Mantei, Planning Law Solutions (Applicant) S Shneider, Houston Dearn O’Connor (Respondent)
File Number(s):	2018/377128
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against refusal by Shoalhaven City Council (hereafter the Council) of Modification Application (MA) DS18/1343, which seeks to modify Development Consent DA14/2580, subsequently modified by MA DS17/1265. The MA under appeal seeks use of portions of the dwellings already constructed, but not approved under previous consents as they relate to extension of the rear portion, and new works to the balustrade on Lot 4 DP 16055, also known as 8 Admiralty Crescent, Huskisson (hereafter the Site).

2. This Class 1 appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act 1979).

3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act 1979) between the parties, which was held on 29 August 2019. I presided over the conciliation conference. There were two residents heard at the onsite viewing in this conciliation. The issues raised by objectors regarding privacy and view loss is resolved to the parties’ satisfaction by the proposed works to the balustrade.

4. At the conciliation conference, the applicant sort to rely on amended plans seeking to identify specific areas the subject of the appeal. Based on these amended plans, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision is to uphold the appeal and grant consent to DS18/1343, which modifies consent DA14/2580.

5. Pursuant to s 34(3) of the LEC Act 1979, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.55(1A) of the EPA Act 1979 to grant consent to the MA (DS18/1343) with amended plans and conditions.

6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings, pursuant to s 4.55(1A) of the EPA Act 1979, as consistency with: Shoalhaven Local Environmental Plan 2014 (SLEP); and Shoalhaven Development Control Plan 2014 (SDCP). The parties agree that the amended plans and proposed conditions of consent relate to the merits of the proposal.

7. The parties agree that the relevant provisions of the SLEP are addressed to their satisfaction by the amended plans to the MA under appeal. The parties have assessed that the proposed development does not contravene any development standards.

8. The parties agree that the proposed modification, which is limited to the rear portion of the dwellings, is substantially the same as already approved, and does not result in amenity impacts. The proposed reduction in the external balcony framing to within the foreshore building line is consistent with Section 5.3 of the SDCP. The potential issues of privacy and view loss have been addressed by screening and a reduction in the extent of the balcony on the southern side. The parties agree the proposed modification is of minimal environmental impact.

9. The MA was notified consistent with the SDCP and submissions received during the notification period have been satisfactorily addressed in the amended plan and by the proposed MA conditions of consent. There are no concurrence requirements.

10. I am therefore satisfied that there are no jurisdictional impediments to this agreement and that the amended MA, based on the amended plans as provided in the conditions of consent, satisfies the requirements of s 4.55(1A) of the EPA Act 1979.

11. 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 1979 to dispose of the proceedings in accordance with the parties' decision.

12. The Court orders:

1. Leave is granted to the Applicant to rely on the following plans that are the subject of Modification Application No. DS2018/1343: Architectural Plans Prepared by Hotondo Homes job no. NEST1539 amended 29/08/2019 sheets 1 to 9.

2. The appeal is upheld.

3. Development Consent No. DA14/2580 for demolition of existing cottage and erection of an attached dual occupancy at Lot 4 DP 16055, 8 Admiralty Crescent Huskisson is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 as set out in Annexure “A”.

4. As a consequence of order 2.3, Development Consent No. DA14/2580 is subject to the consolidated, modified conditions of consent as set out in Annexure “B”.

……………………….

Sarah Bish

Commissioner of the Court

Annexure A (184 KB)

Annexure B (358 KB)

Building plans (1.78 MB)

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Decision last updated: 16 September 2019