Merman Investments Pty Ltd v Woollahra Municipal Council

[2024] NSWLEC 1472

Land and Environment Court

New South Wales

Medium Neutral Citation:

Merman Investments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1472

Hearing dates:

Conciliation conference on 2 August 2024

Date of orders:

06 August 2024

Decision date:

06 August 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is granted

(2) Development consent no. DA325/2020/1 is modified in the terms in Annexure A

(3) Development consent no. DA325/2020/1 as modified by the Court is Annexure B

Catchwords:

MODIFICATION APPLICATION – residential flat building - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 102,

State Environmental Planning Policy (Housing) 2021, ss 147

Cases Cited:

Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582

Category:

Principal judgment

Parties:

Merman Investments Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicant)
D Le Breton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/423287

Publication restriction:

Nil

JUDGMENT

1. Commissioner: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court consent (Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582). The modification application was filed with the Court on 22 November 2023 and amended on 30 May 2024.

2. The proposed modifications to the original consent are for internal modifications to the basement and building as well as the provision of services including stairs, flooding/stormwater facilities and fire facilities.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 2 August 2024. I presided over the conciliation conference.

4. 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. This decision involved the Court approving the modification application and modifying the development consent.

5. Accompanying the submitted s 34 agreement, the parties have provided a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

7. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 application as amended prior to the conciliation conference, 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. This is set out below.

9. I am satisfied that owners consent accompanied the modification application.

10. Sections 4.55(8) and 4.55(2) apply to the modification application. I have considered the documentation within the modification application and the parties’ agreed jurisdictional statement. I accept that the proposed internal modifications and services will be substantially the same as the original development (s 4.55(2)(a) of the EPA Act) as they do not change any of the substantive elements of the built form or overall development.

11. With respect to s 4.55(2)(b), (c) and (d) of the EPA Act, the modification application was notified between 17 January 2024 to 1 February 2024. One submission was received. As the parties have entered into an agreement to modify the consent, the parties have considered the merits of the issues raised.

12. With respect to s 4.55(3) of the EPA Act and the reasons for granting consent, in reviewing the modification application and Merman Investments Pty Ltd v Woollahra Municipal Council [2021] NSWLEC 1582, the modification application does not offend the reasons for the grant of consent as they involve mostly internal changes to the built form and changes to accommodate services along the frontage, façade and side setback egress.

13. I accept that the parties have considered s 4.15(1) of the EPA Act as set out in the agreed jurisdictional statement, Statement of Environmental Effects letter dated 21 November 2023 and report titled Test of Substantially the Same dated 10 May 2024 both prepared by Gyde Consulting and documentation accompanying the modification application. The following is acknowledged:

1. The vast majority of changes are internal to the built form, minor changes to areas of the façade and external changes for services (including stairs, flood gates and fire facilities); and

2. The modification application is accompanied by a Design Report prepared by the original registered architect (Mr Tzannes, registration number 4174) as required by s 102 of the EPA Reg that addresses s 147 of State Environmental Planning Policy (Housing) 2021.

14. The parties agree and I accept that the provisions required to be addressed by ss 4.55(2) and 4.15 of the EPA Act have been met as evidenced in the documentation accompanying the modification application and supported by the jurisdictional statement.

Conclusion

15. 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.

16. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

17. 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.

Orders:

18. The Court orders:

1. The appeal is granted

2. Development consent no. DA325/2020/1 is modified in the terms in Annexure A

3. Development consent no. DA325/2020/1 as modified by the Court is Annexure B

S Porter

Commissioner of the Court 

Annexure A 

Annexure B

**********

Decision last updated: 06 August 2024