Mellick v Woollahra Municipal Council

[2024] NSWLEC 1625

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mellick v Woollahra Municipal Council [2024] NSWLEC 1625

Hearing dates:

Conciliation Conference 23 September 2024

Date of orders:

08 October 2024

Decision date:

08 October 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No DA2019/252 for the alterations and additions to the existing dwelling at 30 Wyuna Road Point Piper is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A.

(3) Development Consent No DA2019/252 as modified by the Court is set out in Annexure B.

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34, 34AA

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

State Environmental Planning Policy (Resilience and Hazards) 2021

Woollahra Local Environmental Plan 2014, Sch 5, Pt 1, cl 5.10

Category:

Principal judgment

Parties:

Charles Mellick (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
E Whitney (Solicitor) (Applicant)
P Rigg (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Peter R Rigg (Respondent)

File Number(s):

2024/296056

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s modification application seeking to modify DA 252/2019 (Original Consent). The Original Consent was granted by the respondent on 13 May 2020 and approved alterations and additions to an existing dwelling and widening of the existing garage and landscaping on Lot 2 in Deposited Plan 567775, known as 30 Wyuna Road, Point Piper (Subject Land). It is noted that the Original Consent was subsequently modified on multiple occasions The modification application the subject of this appeal, made under s 4.55(1A) of the EPA Act, seeks to amend the Original Consent.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Modification Application

3. The modification application (DA252/2019/12) was lodged with the respondent on 11 June 2024 pursuant to s 4.55(1A) of the EPA Act and sought to amend the Original Consent by seeking changes to the ensuite bathroom to the master bedroom of the dwelling (Modification Application), namely to:

1. remove existing door separating the bathroom from the WC in the ensuite (nibs to be retained);

2. remove (and not replace) the bath and handbasin;

3. install a new vanity and WC;

4. replace waterproofing and floor and wall tiles with different tiles to those previously approved; and

5. install new fittings to the shower and WC.

4. On 12 August 2024, the applicant commenced these Class 1 proceedings under s 8.9 of the EPA Act in respect of the respondent’s deemed refusal of the Modification Application.

5. The proceedings were commenced within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. The Court arranged a conciliation conference under s 34AA(2)(a) of the LEC Act between the parties, which was held on 23 September 2024. I presided over the conciliation conference.

7. At the conciliation conference, the parties reached agreement under s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. An agreement was filed on 23 September 2024 following the applicant amending its Modification Application with the respondent’s agreement. The agreed amendments to the Modification Application primarily include the provision of a schedule of materials and finishes (Amended Modification Application).

8. The decision agreed upon is for the grant of consent to the Amended Modification Application, subject to conditions of consent.

9. 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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Jurisdictional considerations

10. As the presiding Commissioner, 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 form this state of satisfaction on the basis that:

1. The applicant is the registered proprietor of the Subject Land and provided consent to the Modification Application when it was lodged with the respondent.

2. The Site is zoned R2 Low Density Residential under the Woollahra Local Environmental Plan 2014 (WLEP 2014). Accordingly, dwelling houses are permitted with consent in the R2 zone. I accept the parties’ submission that the Amended Modification Application does not breach any development standard in the WLEP 2014.

3. The Subject Land is identified as an item of local heritage significance under Pt 1 of Sch 5 of the WLEP. Clause 5.10(4) of the WLEP relevantly requires the consent authority to consider the effect of the proposed development on the heritage significance of the item before granting consent in respect of the heritage item. Having regard to the assessment and conclusions set out in the Addendum to the Heritage Impact Statement prepared by Urbis dated 28 May 2024, and the agreed conditions of consent, I am satisfied that the Amended Modification Application is acceptable having regard to the heritage significance of the item.

4. For the purposes of s 4.55(1A) of the EPA Act, the development to which the Original Consent as modified relates is substantially the same development as the development for which the Original Consent was granted. I have formed this view for the following reasons as generally identified in the Statement of Environmental Effects prepared by GSA Planning dated 6 June 2024 (SEE), including:

1. the modifications and environmental impacts are minor and contained to the ensuite bathroom to the master bedroom;

2. the physical changes associated with the Amended Modification Application are not significant and are entirely internal to the dwelling; and

3. the changes proposed by the Amended Modification Application do not result in a radical transformation of, or significant change to, the character of the development as originally approved.

5. In relation to s 4.55(1A)(c), the respondent has confirmed that the Modification Application as lodged was not required to be notified due to the minor and internal nature of the works.

6. Consequently, the requirements in 4.55(1A)(d) of the EPA Act are not relevant.

7. I accept the parties’ submission that it is satisfied that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and are satisfied in relation to the Amended Modification Application, namely the long standing historical residential use of the Subject Land.

8. I accept the parties’ submission that the requirements of Ch 6 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 have been considered and are satisfied in relation to the Amended Modification Application.

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 to dispose of the proceedings in accordance with the parties’ decision.

12. The Court notes that:

1. the applicant has agreed to lodge a Building Information Certificate Application (BIC Application) in respect of the ceiling constructed without consent in the main part of the ensuite bathroom and that this will be a condition of consent (see Condition C.17 of the Agreed Conditions); and

2. the respondent, as the relevant consent authority, has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Modification Application DA2019/252/12 to include the Schedule of Materials and Finishes prepared by Lawless & Meyerson, dated 23 September 2024.

Orders

13. The Court orders that:

1. The appeal is upheld.

2. Development Consent No DA2019/252 for the alterations and additions to the existing dwelling at 30 Wyuna Road Point Piper is modified pursuant to section 4.55(1A) of the Environmental Planning and Assessment Act 1979 in the terms in Annexure A.

3. Development Consent No DA2019/252 as modified by the Court is set out in Annexure B.

N Targett

Commissioner of the Court

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Annexure A

Annexure B

Decision last updated: 08 October 2024