Mihovilovic v Inner West Council

[2024] NSWLEC 1437

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mihovilovic v Inner West Council [2024] NSWLEC 1437

Hearing dates:

Conciliation conference 17, 18 July 2024

Date of orders:

26 July 2024

Decision date:

26 July 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development consent number DA/2022/0719 is modified in the terms at Annexure A by the approval of Modification Application MOD/2023/0299.

(3) Development consent number DA/2022/0719 for alterations and additions to a dwelling house at 31 John Street, Petersham, as modified by the Court is at Annexure B.

Catchwords:

MODIFICATION APPLICATION – amendments to deferred commencement conditions imposed on consent – conciliation conference – amended plans – agreement between the parties – orders made.

Legislation Cited:

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

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

Environmental Planning and Assessment Regulation 2021, ss 98, 99, 100

Inner West Local Environmental Plan 2022

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.10, Pt 2.2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021

Texts Cited:

Marrickville Development Control Plan 2011

Category:

Principal judgment

Parties:

Veronica Mihovilovic (Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
S Griffiths (Solicitor)(Applicant)
R Dunstan (Solicitor)(Respondent)

Solicitors:
Bartier Perry Solicitors (Applicant)
Inner West Council (Respondent)

File Number(s):

2024/28292

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: This appeal concerns an application to modify development consent, DA/2022/0719. That consent approved alterations and additions to a dwelling house at 31 John Street, Petersham. The Modification Application, MOD/2023/0299 seeks consent to modify the development consent by the amendment of the consent conditions in relation to access for onsite parking, tree removal, the proposed upper floor balcony, the proposed side entry door and the provision of an acoustic report.

2. The appeal is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the 17-18 July 2024. 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 upholding the appeal and granting consent to the Modification Application subject to conditions. 

4. 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 modification application was lodged by the Applicant who is the owner of the Land (s 98 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation)). The modification application complies with ss 98, 99 and 100 of the EPA Regulation. The modification application includes the proposed removal of one street tree from the Newington Road frontage of the site. The Respondent consents to the removal of the tree, subject to conditions for its removal and contribution for replacements.

2. The modification application is made pursuant to s 4.55(1A) of the EPA Act. This provision has a number of conditions that need to be satisfied. The provision states:

4.55 Modification of consents—generally (cf previous s 96)

…

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

3. The first test at s 4.55(2) of the EPA Act is that the consent authority must be satisfied that the development, as modified, is substantially the same as the development to which consent was granted. The parties agree, and I accept that I can be satisfied, that the development to which the consent as modified relates is quantitatively and qualitatively substantially the same development as the development for which consent was originally granted. There is no ‘radical’ change to the massing or bulk/scale of the development. The changes to the architectural design and material do not substantially change the building footprint or massing. The provision of access to the onsite parking space, the addition of a small rear facing Juliet balcony at the upper floor and the remaining modifications are not substantial when considered in the context of the whole development. I find that s 4.55(2)(a) of the EPA Act is satisfied.

4. In relation to the second test at s 4.55(2)(b) there are no conditions which have been imposed as a requirement of a concurrence to the original consent or general terms of approval. Consultation with any relevant Minister or a public authority or approval body was not required.

5. The third test at s 4.55(2)(c) and (d) requires that the application is notified in accordance with Marrickville Development Control Plan 2011 (DCP 2011). The modification application was notified to surrounding residents from 27 September to 11 October 2023. One submission was received. I am satisfied that the modification application was notified, and the submissions received have been considered, either through amendments to the application or conditions of consent.

6. Under s 4.55(3) of the EPA Act the consent authority must also take into consideration two matters. Firstly, such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified. With the assistance of the agreed jurisdictional note filed by the parties I conclude that none of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, preclude the approval of the Modification Application.

7. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation, the approved development comprises a BASIX affected development, containing a BASIX affected building. The modification application does not alter the commitments on the BASIX certificate.

8. The modification application does not involve works that would require a reconsideration of s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021.

9. Part 2.2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the modification application as it proposes removal of one street tree. Having considered relevant matters under s 2.10 of SEPP BC, the parties agree that the modification application, as amended, is acceptable subject to appropriate conditions of consent which form part of the agreement.

10. The modification application does not affect the previous conclusions of satisfaction and mandatory considerations under the Inner West Local Environmental Plan 2022.

11. DCP 2011 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2011. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

5. Having reached the state of satisfaction that the decision is one that the Court can make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. Section 34(3)(b) of the LEC Act also requires me to “set out in writing the terms of the decision”.

6. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

7. The Court notes that:

1. The Respondent has agreed to the Applicant amending the development application, pursuant to subss 38(1) and (4) of the EPA Regulation, to rely on the following amended architectural plans:

Drawing Number and Title	Prepared By	Date
DR-4328 Sheet 01 – Site Analysis & Demo Plan	PlanShop	18/07/2024
DR-4328 Sheet 02 – Existing Site Plan & Landscape Plan	PlanShop	18/07/2024
DR-4328 Sheet 03 – Site Analysis and Demo Plan	PlanShop	18/07/2024
DR-4328 Sheet 04 – Ground Floor Existing / Demo Plan	PlanShop	18/07/2024
DR-4328 Sheet 05 – South & East Demolition Plan	PlanShop	18/07/2024
DR-4328 Sheet 06 –Ground Floor Proposed Plan	PlanShop	18/07/2024
DR-4328 Sheet 07 – First Floor Existing / Demo Plan	PlanShop	18/07/2024
DR-4328 Sheet 08 – First Floor Proposed Plan	PlanShop	18/07/2024
DR-4328 Sheet 09 – Lower Ground Level Plan	PlanShop	18/07/2024
DR-4328 Sheet 10 – South & West Fence	PlanShop	18/07/2024
DR-4328 Sheet 11 – North & East Plan	PlanShop	18/07/2024
DR-4328 Sheet 12 – Roof Plan	PlanShop	18/07/2024
DR-4328 Sheet 13 – South & North Elevations	PlanShop	18/07/2024
DR-4328 Sheet 14 – South Elevation from Newington	PlanShop	18/07/2024
DR-4328 Sheet 15 – Elevations East & West	PlanShop	18/07/2024
DR-4328 Sheet 16 – Long Sections	PlanShop	18/07/2024
DR-4328 Sheet 17 – Cross Section	PlanShop	18/07/2024
DR-4328 Sheet 18 – Shadow Diagram	PlanShop	18/07/2024
DR-4328 Sheet 19 – Shadow Diagram	PlanShop	18/07/2024
DR-4328 Sheet 20 – Stormwater Drainage Plan	PlanShop	18/07/2024
DR-4328 Sheet 21 – Waste Management Plan	PlanShop	18/07/2024
DR-4328 Sheet 22 – Notification Plan	PlanShop	18/07/2024
DR-4328 Sheet 23 – Calculations	PlanShop	18/07/2024
DR-4328 Sheet 24 – Proposed Door & Window Schedule	PlanShop	18/07/2024
DR-4328 Sheet 25 – Finishes Schedule	PlanShop	18/07/2024
DR-4328 Sheet 30 – BASIX Information	PlanShop	18/07/2024
DR-4328 Sheet 38 – Side Entry Door Details	PlanShop	18/07/2024
DR-4328 Sheet 38.1 – Side Entry Door Sections	PlanShop	18/07/2024

2. The Applicant filed with the Court the abovementioned amended plans associated with the amended development application (and with the consent of the Respondent) on 19 July 2024.

8. The Court orders that:

9. (1) The appeal is upheld

10. (2) Development consent number DA/2022/0719 is modified in the terms at Annexure A by the approval of Modification Application MOD/2023/0299.

11. (3) Development consent number DA/2022/0719 for alterations and additions to a dwelling house at 31 John Street, Petersham, as modified by the Court is at Annexure B.

D Dickson

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 26 July 2024