McElroy v Inner West Council

[2021] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:

McElroy v Inner West Council [2021] NSWLEC 1398

Hearing dates:

Conciliation conference held on 23 June 2021

Date of orders:

8 July 2021

Decision date:

08 July 2021

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification application MOD/2021/0022 is approved and development consent DA/2011/453 is modified by amending condition 2 in the terms set out in Annexure A.

(3) As a consequence of order (2) above, development consent DA/2011/453 is now subject to the consolidated modified conditions of development consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – attached dwellings – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Land and Environment Court Act 1979, s34AA, 34

Leichhardt Local Environmental Plan 2013

Category:

Principal judgment

Parties:

Vera McElroy (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
S Turner (Solicitor) (Respondent)

Solicitors:
McKee Legal Solutions (Applicant)
Inner West Council (Respondent)

File Number(s):

2021/124003

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant appeals from the Council’s deemed refusal of an application to modify development consent DA/2011/453, granted by the Council on 7 March 2012, which approved the demolition of an existing house and the construction of two attached dwellings and the remediation of the land described as Lot 20 DP 422 and known as 14 River Street, Birchgrove.

2. The modification application (MOD/2021/0022) seeks to extend the twin lift shafts to the approved parking level, relocate the garbage bin storage area enclosure from a location adjacent to the front boundary (north eastern corner) to the western side of the lift structure, construct a new privacy wall at the south western side of the open car parking area and modify the west facing balustrades from glass to open metal palisades.

3. The modification application was made to the Council on 1 February 2021. When the modification application had not been determined by the Council within the period after which it was taken to have been refused, on 14 May 2021 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 23 June 2021. I presided over the conciliation conference.

5. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 23 June 2021 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court approving the modification application subject to conditions of consent pursuant to s 4.55(2) of the EPA Act.

6. Under s 34(3) of the LEC Act, 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.

7. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. The development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, this being the test required by s 4.55(2)(a) of the EPA Act. The modifications do not change the development in any material way.

2. The notification requirements of s 4.55(2)(c) of the EPA Act have been met and, consistent with s 4.55(2)(d), I have considered the submissions made with respect to the proposed modification. The modification application was notified to surrounding residents between 11 and 25 February 2021. A total of 15 submissions were received during the notification period. These submissions raised concerns about view loss from adjoining properties and the public domain, disabled access and parking. One of the local residents, Ms Angela Blanchard, gave evidence on-site and also allowed the Court and the parties to observe the view from her dwelling. Ms Blanchard is primarily concerned about the impacts of the proposed modification on the views she currently enjoys from the kitchen and dining room of her dwelling. She also believes the impacts on views enjoyed by pedestrians walking along River Street warrant the refusal of the application.

3. The proposed modification is consistent with all relevant provisions for the carrying out of development on land within Zone R1 General Residential under the Leichhardt Local Environmental Plan 2013.

8. As I have concluded that the parties’ agreement is a decision that the Court could have made in the proper exercise of its functions I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

9. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

10. The Court orders that:

1. The appeal is upheld.

2. Modification application MOD/2021/0022 is approved and development consent DA/2011/453 is modified by amending condition 2 in the terms set out in Annexure A.

3. As a consequence of order (2) above, development consent DA/2011/453 is now subject to the consolidated modified conditions of development consent set out in Annexure B.

…………………………

11. A Bradbury

12. Acting Commissioner of the Court

Annexure A (161285, pdf)

Annexure B (349131, pdf)

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Decision last updated: 08 July 2021