MHN Design Union Pty Ltd v Woollahra Municipal Council

[2025] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:

MHN Design Union Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 1083

Hearing dates:

Conciliation conference 7 February 2025

Date of orders:

18 February 2025

Decision date:

18 February 2025

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The modification application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is determined by way of approval.

(2) Development consent DA172/2023/1 granted by the Land and Environment Court on 18 July 2024 is modified in the terms in Annexure A.

(3) Development consent DA172/2023/1 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – application directly made to Court – dwelling - 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

Cases Cited:

MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1408

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Category:

Principal judgment

Parties:

MHN Design Union Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
A Boskovitz (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2024/422000

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). The modification application is to a Land and Environment Court development consent (MHN Design Union Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1408) (MHN Design). The modification application was lodged to the Court on 13 November 2024. The proposed modifications to the original consent for a dwelling house are summarised as follows:

• Partial infill of recessed areas with associated internal reconfiguration.

• Privacy screens.

• Changes to the pool area to provide a pool water closet.

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 7 February 2025.  I presided over the conciliation conference.

3. 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 determining the modification application and modifying the development consent.

4. 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.

5. 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.

6. 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

7. 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, 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.

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

9. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement. I accept that the proposed minor modifications to the building envelope and addition of a water closet remain substantially the same as the original development (s 4.55(2)(a) of the EPA Act).

10. With respect to s 4.55(2)(b), (c) and (d) of the EPA Act, the modification application was notified between 11 December 2024 and 17 January 2025. No objections were received. No other authorities were required to be notified. I accept the parties’ agreement that these provisions have been met.

11. With respect to s 4.55(3) of the EPA Act and the reasons for granting consent, in reviewing the parties’ jurisdictional statement and MHN Design, the modification application does not offend the reasons for the grant of consent, noting that the judgment reflected the s 34 agreement of the parties.

12. Further, I accept that the parties have adequately considered s 4.15(1) of the EPA Act as set out in the agreed jurisdictional statement, Statement of Environmental Effects prepared by GSA Planning dated 11 November 2024 (SEE) and documentation accompanying the modification application. The modification application does not materially alter the matters for consideration under s 4.15. The modification application exceeds the maximum permitted floor space ratio. A written request is not required (see: SDHA Pty Ltd v Waverley Council (2025) 209 LGERA 233; [2015] NSWLEC 65 at [34] – [35]) and the parties have considered the merits of the proposal as detailed in the SEE.

13. 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 Class 1 appeal and supported by the jurisdictional statement.

Conclusion

14. 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.

15. 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.

16. 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

17. The Court orders:

1. The modification application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 is determined by way of approval.

2. Development consent DA172/2023/1 granted by the Land and Environment Court on 18 July 2024 is modified in the terms in Annexure A.

3. Development consent DA172/2023/1 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court 

Annexure A 

Annexure B

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Decision last updated: 18 February 2025