M Lukic Design Pty Ltd v Woollahra Municipal Council

[2020] NSWLEC 1049

Land and Environment Court

New South Wales

Medium Neutral Citation:	M Lukic Design Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1049
Hearing dates:	Conciliation conference on 29 January 2020
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Court orders: (1) The Applicant is granted leave to amend the application to rely on the amended plans and documentation listed in condition 1. A.8 of the consolidated conditions of consent at Annexure ‘A’. (2) The appeal is upheld. (3) Modification Application No. DA601/2017/2 to amend the conditions of consent of the development consent for alterations and additions, including a new garage and plunge pool, to an existing terrace house at 37 Glenview Street, Paddington, is approved, subject to the consolidated conditions of consent at Annexure ‘A’.
Catchwords:	MODIFICATION APPLICATION – delete a number of conditions of consent – conciliation conference – agreement between the parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Category:	Principal judgment
Parties:	M Lukic Design Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: C Gough (Solicitor) (Applicant) P Rigg (Solicitor) (Respondent) Solicitors: Storey & Gough (Applicant) Woollahra Municipal Council (Respondent)
File Number(s):	2019/170614
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the terms of the grant of consent of Modification Application No. DA601/2017/2 to modify Development Consent 601/2017/1 for alterations and additions, including a new garage and plunge pool, to an existing terrace house at 37 Glenview Street, Paddington (the site) by Woollahra Municipal Council (the Council).

2. The conditions of consent sought to be deleted are A.6, C.1(a)(i), C.1(a)(ii) and C.1(c)(i) of Development Consent 601/2017/1 (the proposal). These conditions specified that consent was not granted in relation to the following items:

• the installation of solar panels to the principal rear roof plane of the dwelling’s principal building form;

• the garage roof garden being trafficable and access to the garage roof area is for maintenance only;

• the eastern elevation external masonry walling on the first floor is to be setback 1.73m from the eastern side boundary;

• the resultant eastern elevation ground floor level roofing including parapet walling located over the eastern side of the living and kitchen area is not to exceed RL30.28 AHD;

• The proposed reinstallation of the solar panels to the principal rear roof plane of the dwelling’s principal building form is not approved.

3. The proposal amends the conditions of consent to retain the existing side setback to the east, to retain solar panelling on the roof of the rear wing of the terrace house and to lower the floor level of the dining room.

4. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 29 January 2019. I presided over the conciliation conference.

5. 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.

6. 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 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, pursuant to s 4.55(2) of the EPA Act and cl 5.10(4) of the Woollahra Local Environmental Plan 2014.

8. I am 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, because the changes made to the approved development by the proposal are minor.

9. I have considered the effect of the proposal on the heritage significance of the Paddington Heritage Conservation Area and I am satisfied that the proposal will not affect the heritage significance of the Paddington Heritage Conservation Area because the changes made to the approved development by the proposal are minor.

Orders

10. The orders of the Court are:

1. The Applicant is granted leave to amend the application to rely on the amended plans and documentation listed in condition 1. A.8 of the consolidated conditions of consent at Annexure ‘A’.

2. The appeal is upheld.

3. Modification Application No. DA601/2017/2 to amend the conditions of consent of the development consent for alterations and additions, including a new garage and plunge pool, to an existing terrace house at 37 Glenview Street, Paddington, is approved, subject to the consolidated conditions of consent at Annexure ‘A’.

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Susan O’Neill

Commissioner of the Court

Annexure A (591 KB)

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Decision last updated: 20 February 2020