Marks v Willoughby City Council

[2019] NSWLEC 1367

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marks v Willoughby City Council [2019] NSWLEC 1367
Hearing dates:	Conciliation conference on 26 July 2019
Date of orders:	06 August 2019
Decision date:	06 August 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   Leave is granted to amend the appeal from a deemed refusal appeal to an appeal against the imposition of conditions as set out in the amended Class 1 Application at Annexure “A”. (2)   Leave is granted to rely on the amended architectural plans set out at Condition A1 in Annexure “B”. (3)   The appeal is upheld. (4)   Modification Application No. DA-2017/484/A to modify Development Consent 2017/484 for alterations and additions to an existing dwelling at 240 Edinburgh Road, Castlecrag is approved, subject to the conditions of consent at Annexure “B”.
Catchwords:	MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Aidan Austin Marks (Applicant) Willoughby City Council (Respondent)
Representation:	Solicitors: J Hones, Hones Lawyers (Applicant) K Webber, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/390194
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’) against the Respondent’s refusal of a modification application made pursuant to s 4.55(2) of the EP&A Act.

2. The modification application seeks to modify Development Consent No. 2017/484 for alterations and additions to an existing dwelling including first floor addition and associated works at 240 Edinburgh Road Castlecrag, also identified as Lot 3 DP 29198 (‘site’). The modification application (referenced as DA 2017/484/A would amend certain nominated works at the rear of the building.

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 26 July 2019 and which I presided over. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application.

4. 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.

5. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EP&A Act to grant consent to the modification application. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings and explained how they have been or could be satisfied.

6. In regard to jurisdiction, I note the following:

• Having regard to s 4.55(2)(a), 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 (there had been no prior modification of the consent). This is because the changes are to built form details and the development would be essentially and materially the same with the proposed changes.

• Having regard to ss 4.55(2)(b) and (c), I am satisfied with the advice of Council that proper notification and consultation has occurred.

• Having regard to s 4.55(2)(d), I am satisfied that due consideration has been given to submissions, with the parties explaining to me certain responses were made to neighbour objections, in particular in regard to privacy.

• Having regard to s 4.55(3) of the EP&A Act, I have reviewed and taken into consideration relevant matters under s 4.15(1) of the EP&A Act and the reasons given by the consent authority for the grant of the consent that is sought to be modified (in particular the documentation accompanying the determination dated 29/8/2019).

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 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 to dispose of the proceedings in accordance with the parties’ decision.

8. The Court orders:

1. Leave is granted to amend the appeal from a deemed refusal appeal to an appeal against the imposition of conditions as set out in the amended Class 1 Application at Annexure “A”.

2. Leave is granted to rely on the amended architectural plans set out at Condition A1 in Annexure “B”.

3. The appeal is upheld.

4. Modification Application No. DA-2017/484/A to modify Development Consent 2017/484 for alterations and additions to an existing dwelling at 240 Edinburgh Road, Castlecrag is approved, subject to the conditions of consent at Annexure “B”.

……………………….

P Walsh

Commissioner of the Court

Annexure A (113 KB)

Annexure B (355 KB)

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Decision last updated: 06 August 2019