Minas v Goulburn Mulwaree Council

[2021] NSWLEC 1506

Land and Environment Court

New South Wales

Medium Neutral Citation:

Minas v Goulburn Mulwaree Council [2021] NSWLEC 1506

Hearing dates:

Conciliation conference on 12 May 2021, 23 June 2021, 12 and 21 July 2021

Date of orders:

1 September 2021

Decision date:

01 September 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

See [33], [34] and [35]

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to multi-storey dwelling – flooding impact – Building Information Certificate appeal – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.2, 4.5, 4.15, 4.16, 6.22, 6.23, 6.24, 6.25, 6.26, 8.7, 8.10, 8.14, 8.25

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 77, 280

Goulburn Mulwaree Local Environmental Plan 2009, cll 2.3, 7.1

Land and Environment Court Act 1979, ss 17, 34, 39

State Environmental Planning Policy No 55 – Remediation of Land, reg 7

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 4

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, cl 10

Texts Cited:

Building Code of Australia

Goulburn Mulwaree Development Control Plan 2009

Wollondilly and Mulwaree Rivers Flood Study 2016

Wollondilly River and Mulwaree Chain of Ponds Floodplain Risk Management Study and Plan, March 2003

Category:

Principal judgment

Parties:

George Minas (Applicant)
Goulburn Mulwaree Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor)(Applicant)
M Winram (Solicitor)(Respondent)

Solicitors:
Pikes & Verekers Lawyers (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/26549
2021/26550

Publication restriction:

No

Judgment

1. COMMISSIONER: Proceedings 2021/26549 are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Goulburn Mulwaree Council’s (Council) refusal of development application DA/0216/2021 (DA) on 20 January 2021 for alterations and additions to a multi-storey dwelling located at 15 Avoca Street Goulburn NSW (DA proceedings). I note:

1. The site is the whole of the land in Lot 8 in Deposited Plan 532532 and is known as 15 Avoca Street Goulburn NSW (the site).

2. The proceedings fall under Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39 of the LEC Act.

2. In the DA the Applicant is seeking approval for alterations and additions to existing multi-dwelling housing, change of use of the under-croft car parking to storage and ground keeper’s room including kitchen, and in particular seeks consent for:

1. Continued use of three (3) enclosed storage rooms and one (1) open storage area on the ground floor of the building;

2. Continued use of the storage/ground keeper’s room comprising kitchenette, bathroom and additional unlabelled room, on the ground floor of the building;

3. Works already completed consisting of a replaced internal stair access connecting the upper and lower floors of dwelling no. 6 and relocation of the kitchen to the lower floor, and

4. Demolition and replacement of the upper floor communal access balcony.

3. On 5 March 2021 the Court made the following Order:

“Proceedings 2021/26549 and 2021/26550 are to be heard and dealt with together.”

4. The DA proceedings are set out above. In proceedings No. 2021/26550 pursuant to ss 8.25(1) and (2) of the EPA Act, the Applicant also appealed against Council’s refusal of Building Information Certificate Application BC/0027/2021 (BIC) dated 16 December 2020 (BIC proceedings).

5. The nature and details of the works sought in the BIC are:

1. Construction of lightweight walls with windows and doors to enclose under-croft areas and create four (4) storage areas, one (1) open storage area, and one (1) storage/ground keeper’s room;

2. Installation of a kitchenette in the ground keeper’s room;

3. Construction of internal partition walls and reconfiguration of existing bathroom to create two bathrooms in the under-croft area, one associated with the ground keeper’s room and one connected to the existing Unit 6;

4. Relocation of kitchen from first floor to ground level within existing Unit 6; and

5. Demolition of spiral stairs and construction of replacement stairs within existing Unit 6.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 12 May 2021, 23 June 2021, 12 and 21 July 2021. I presided over the conciliation conference. The parties filed a Section 34 Agreement on 12 July 2021 in the BIC proceedings and on 26 August 2021 in the DA proceedings.

Background – DA proceedings

7. Both the DA and BIC relate to the same site. The proposals relate to a ‘residential flat building’ as defined in the Dictionary to Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP2009). The site is situated within Zone R1 General Residential pursuant to the provisions of the GMLEP2009.

8. The site contains a single building which is used as multi-dwelling housing. The site is in the ownership of the Applicant, and he rents the units as fully furnished units, which requires under-croft storage for the furniture not in use from time to time.

9. The building contains six (6) dwellings, three (3) of which are on the ground floor and three (3) on the first floor. The area nominated as the ‘ground keeper’s room’ was already constructed to form a seventh dwelling. The site:

1. has street frontage and pedestrian access to both Avoca and Giddings Streets, with vehicular access off Giddings Street;

2. has an area of 1,378m² and is rectangular in shape;

3. is relatively flat with a slight fall to the north;

4. is bounded by multi-dwelling housing to the south; detached residential development to the east and west (lots around 700m²), and a sports’ playing field to the north;

5. is located within the Sydney Drinking Water Catchment;

6. is wholly mapped as flood prone land.

10. The locality is characterised by residential development established generally between 1940-1970.

11. On 18 February 1971 Council granted consent to a Building and Development Application (BA 185/70) (BA) for the erection of ‘Brick veneer flats’. A condition was imposed requiring “that the floor level be at least one foot higher than the highest recorded flood”.

12. The BA included the erection of a building containing five (5) dwellings. To comply with the condition requiring the floor level to be at least one foot higher than the highest recorded flood, the three western most dwellings were constructed with a floor level approximately 1m above existing ground level. The two eastern most dwelling were constructed with a floor level approximately 2m above existing ground level. These two eastern dwellings are referred to as the first floor dwellings. At some stage another flat was added on the first floor.

13. On 10 April 2014 Council issued a Building Certificate No. BC/0036/1213 for the “Flats 1-6 including car parking under”.

14. During 2020 Council issued Development Control Orders in relation to the site, and these Orders were later withdrawn on the Applicant’s undertaking to lodge a development application.

15. On 24 November 2020 the Applicant lodged DA/0216/2021 with Council. On 20 January 2021 Council determined the DA by way of refusal on the grounds that:

1. The site is flood prone: Part 7 cl 7.1 of the GMLEP2009 identified the land as Flood Planning Area on the Flood Planning Map. The site is wholly flood prone and is subject to the 1:100 flood under the Wollondilly River and Mulwaree Chain-of-Ponds Floodplain Risk Management Study 2003. The land is classified as Flood Storage with the flood depth being up to 1.2m under the Wollondilly and Mulwaree Rivers Flood Study 2016.

2. The DA included alterations to dwelling no. 6 which is a two storey dwelling located on the eastern most side of the residential flat building. The BA did not approve a sixth dwelling and Council holds no record in relation to dwelling no. 6. Council considers that this dwelling is unauthorised.

3. Not in the public interest because of the flood risk the DA would result in, and unsustainable social and economic costs to the community.

4. Insufficient information in relation to the ground floor storage rooms.

Background – BIC proceedings

16. On 24 November 2020 the Applicant lodged the BIC with Council.

17. On 16 December 2020 the Council determined the BIC by way of refusal for the following reasons:

1. The BIC did not demonstrate that the building works had been constructed of flood compatible materials which could adversely affect flood behaviour resulting in detrimental increase in the potential flood affectation to other development or properties.

2. The provision of the Ground Keeper’s room in the under-croft changes the Building Code of Australia (BCA) classification from Classes 1a and 10a to 2 and 10a. The building does not contain fire safety provisions suitable for the new BCA classification.

3. The BIC does not demonstrate that the building is suitable for occupation in accordance with various performance provisions of Volume 1 of the BCA; i.e. structural reliability and resistance; buildings in flood areas; fire protection; the internal stairs in unit 6; lack of ceiling height in the under-croft area for use of those areas as habitable rooms.

18. 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:

1. In accordance with ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39(2) of the LEC Act, the Court upholding the appeal in relation to the DA proceedings, and granting development consent to the DA subject to conditions.

2. In accordance with s 8.25(3) of the EPA Act and ss 34(3) and 39(2) of the LEC Act, the Court upholding the appeal in relation to the BIC proceedings and directing the Council to issue the BIC subject to the Applicant complying with various pre-conditions.

Legislation

Environmental Planning and Assessment Act 1979

4.2 Development that needs consent

(cf previous s 76A)

(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—

(a such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2) For the purposes of subsection (1), development consent may be obtained—

(a)  by the making of a determination by a consent authority to grant development consent, or

(b) in the case of complying development, by the issue of a complying development certificate.

(3), (4) (Repealed)

(5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.

(6)–(9)(Repealed)

Note—

Division 4.7 makes provision with respect to State significant development.

4.5   Designation of consent authority

For the purposes of this Act, the consent authority is as follows—

(a)  in the case of State significant development—the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind),

(b)  in the case of development of a kind that is declared by an environmental planning instrument as regionally significant development—the Sydney district or regional planning panel for the area in which the development is to be carried out,

(c)  in the case of development of a kind that is declared by an environmental planning instrument as development for which a public authority (other than a council) is the consent authority—that public authority,

(d)  in the case of any other development—the council of the area in which the development is to be carried out.

4.15   Evaluation

(cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a)  is not entitled to take those standards into further consideration in determining the development application, and

(b)  must not refuse the application on the ground that the development does not comply with those standards, and

(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note—

The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4).

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.

(5)  A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).

(6) Definitions In this section—

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

4.16   Determination

(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

…..

(13), (14)    (Repealed)

6.22   Who may apply for building information certificates

(cf previous s 149B)

The following persons may apply for a building information certificate in relation to a building—

(a)  the owner of the land on which the building is erected,

(b)  any other person with the consent of the owner of that land,

(c)  the purchaser under a contract for the sale of property that comprises or includes the building, or the purchaser’s Australian legal practitioner or agent,

(d)  a public authority that has notified the owner of that land of its intention to apply for the certificate.

6.23 Making of applications for building information certificates

(cf previous s 149B)

(1) Applications for building information certificates are to be made to the council for the area in which the land to which the application relates is situated.

(2) The regulations may provide for the procedure for making and dealing with applications for building information certificates.

Note—

Division 7.4 enables the regulations to prescribe the fee for an application for a certificate.

(3) The regulations may assign an area that is outside a local government area to be part of a specified adjoining local government area in relation to building information certificates. For the purposes of this Division, the assigned area is taken to be a part of the local government area concerned.

6.24   Issue of building information certificates

(cf previous s 149D)

(1)  A council is (subject to this Division) required to issue a building information certificate as soon as practicable after an application for the certificate is made to the council.

(2)  The regulations may prescribe the form and manner in which a building information certificate is issued.

ss 6.22–6.24: Ins 2017 No 60, Sch 6.1.

6.25   Issue, nature and effect of building information certificate

(cf previous ss 149D, 149E)

(1)  A building information certificate is to be issued by a council only if it appears that—

(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—

(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or

(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or

(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b)  there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

(2)  A building information certificate is a certificate that states that the council will not make an order or take proceedings referred to in subsections (3) and (4).

6.26   Miscellaneous provisions relating to building information certificates

(cf previous ss 149A, 149C, 149D, 149G)

(1)  A building information certificate may apply to the whole or to part only of a building.

(2)  On receipt of an application for a building information certificate, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application.

(3)  If the applicant is able to provide evidence that no material change has occurred in relation to the building since the date of a survey certificate which, or a copy of which, is supplied to the council by the applicant, the council is not entitled to require the applicant to supply a more recent survey certificate.

(4)  If the council refuses to issue a building information certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.

(5)  The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building information certificate.

(6) The council must not refuse to issue or delay the issue of a building information certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in section 6.25(1)(a) (Issue, nature and effect of building information certificate).

(7)  Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building information certificate or from deferring its determination of the application until the applicant has had an opportunity to do that work.

(8)  The council must keep a record of building information certificates issued.

(9)  A person may inspect the record at any time during the ordinary office hours of the council.

(10)  A person may obtain a copy of a building information certificate from the record with the consent of the owner of the building.

8.7   Appeal by applicant—applications for development consent

(cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2)  For the purposes of this section, the determination of an application by a consent authority includes—

(a)  any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b)  any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3)  An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

8.10   Time within which appeals may be made

(1)  An appeal under this Division (except by an objector) may be made only within the following periods after the relevant date (being the date the decision appealed against is notified or registered on the NSW planning portal or the date of deemed refusal under section 8.11)—

(a)  6 months after the relevant date, if the relevant date occurs after the prescribed period, or

(b)  12 months after the relevant date, if the relevant date occurs—

(i)  during the prescribed period, or

(ii)  during the 6-month period immediately before the prescribed period.

(2)  An appeal under this Division by an objector may be made only within the following periods after the relevant date (being the date the objector is notified of the decision appealed against)—

(a)  28 days after the relevant date, if the relevant date occurs after the prescribed period, or

(b)  56 days after the relevant date, if the relevant date occurs—

(i)  during the prescribed period, or

(ii)  during the 28-day period immediately before the prescribed period.

(3)  In this section—

prescribed period means the period commencing on 25 March 2020 and ending on 25 March 2022.

8.14   Powers of Court on appeals

(cf previous s 39(6A) Land and Environment Court Act)

(1)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(2)  The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly.

…

8.25   Appeals with respect to building information certificates

(cf previous s 149F)

(1)  An applicant—

(a)  who is dissatisfied with a council’s refusal to issue a building information certificate under Part 6, or

(b)  who is dissatisfied with a council’s failure to issue a building information certificate within the period prescribed by the regulations, or

(c)  who is dissatisfied with a notice from the council to supply information in connection with an application for a building information certificate,

may appeal to the Court.

(2)  The appeal may be made only within 6 months after the date on which the person is given notice of the decision appealed against or the end of the deemed refusal period referred to in subsection (1).

(3)  On hearing the appeal, the Court may do any one or more of the following—

(a)  direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b)  revoke, alter or confirm a notice to supply information,

(c)  make any other order that it considers appropriate.

Environmental Planning and Assessment Regulation 2000

49   Persons who can make development applications

(cf clause 46 of EP&A Regulation 1994)

(1)  A development application may be made—

(a)  by the owner of the land to which the development application relates, or

(b)  by any other person, with the consent of the owner of that land.

(2)  The consent of the owner of the land is not required for a development application made by a public authority, or for a development application for public notification development, if the applicant instead gives notice of the application—

(a)  to the owner of the land before the application is made, or

(b)  by publishing a notice no later than 14 days after the application is made—

(i)  in a newspaper circulating in the area in which the development is to be carried out, and

(ii)  in the case of an application made by a public authority, on the public authority’s website, or, in the case of public notification development, on the NSW planning portal.

(3)  Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent given by or on behalf of the Crown.

(3A)  Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.

(4)  Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development.

(4A)  The consent of an owner or other person under this clause is not required to be in writing.

(5)  In this clause—

public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.

public notification development means—

(i)  State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974 or

(ii)  State significant development on land with multiple owners designated by the Planning Secretary for the purposes of this clause by notice in writing to the applicant for the State significant development.

55   What is the procedure for amending a development application?

(cf clause 48A of EP&A Regulation 1994)

(1)  A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal.

(2)  If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development.

(3)  If the development application is for—

(a)  development for which concurrence is required, as referred to in section 4.13 of the Act, or

(b)  integrated development,

the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.

77   Notice of development applications

(1)  As soon as practicable after a development application is lodged with the consent authority, the consent authority must—

(a)  publish notice of the application on the consent authority’s website, and

(b)  give notice of the application to—

(i)  the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii)  in the case of a development application other than designated development—the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

(2)  The notice must contain the following information—

(a)  a description (including the address) of the land on which the development is proposed to be carried out,

(b)  the name of the applicant and the consent authority,

(c)  a description of the proposed development,

(d)  whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,

(e)  a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority’s website for the period specified in Schedule 1 to the Act for that kind of development,

(f)  a statement that any person, during the submission period specified in Schedule 1 to the Act for that kind of development, may make submissions to the consent authority concerning the development application and that the submissions must specify the grounds of objection (if any),

(g)  if the proposed development is also integrated development—

(i)  a statement that the development is integrated development, and

(ii)  a statement of the approvals that are required and the relevant approval bodies for those approvals,

(h)  in the case of State significant development—whether the Minister has directed that a public hearing should be held,

(i)  in the case of designated development—a statement that, unless the Independent Planning Commission has conducted a public hearing, a person may appeal to the Land and Environment Court if the person makes a submission by way of objection and is dissatisfied with the determination of the consent authority to grant development consent,

(j)  in the case of designated development—a statement that, if the Independent Planning Commission conducts a public hearing, the Commission’s determination of the application is final and not subject to appeal.

(3)  For the purposes of this clause—

(a)  if land is a lot in a strata scheme (within the meaning of the Strata Schemes Development Act 2015) a notice to the owners corporation is taken to be notice to the owner or occupier of each lot within the strata scheme, and

(b)  if land is a lot in a leasehold strata scheme (within the meaning of the Strata Schemes Development Act 2015), a notice to the lessor under the leasehold strata scheme and to the owners corporation is taken to be notice to the owner or occupier of each lot within the leasehold strata scheme, and

(c)  if land is owned or occupied by more than one person, a notice to one owner or one occupier is taken to be notice to all the owners and occupiers of that land.

cl 77: Am 2018 (500), Sch 2 [15]. Subst 2020 (167), Sch 1[22].

280 Application for building information certificate

(cf clause 112A of EP&A Regulation 1994)

(1) An application for a building information certificate in relation to the whole or a part of a building may be made to the council by—

(a) the owner of the building or part or any other person having the owner’s consent to make the application, or

(b) the purchaser under a contract for the sale of property, which comprises or includes the building or part, or the purchaser’s solicitor or agent, or

(c) a public authority that has notified the owner of its intention to apply for the certificate.

(2) An application must be accompanied by the fee payable under clause 260.

(2A) An application must be lodged on the NSW planning portal.

(3) Despite subclause (1)(a), the consent in writing of the owner of the building or part is not required if the applicant is a public authority and the public authority has, before making the application, served a copy of the application on the owner.

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—……

(d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979, 

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and

fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)  Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development

4   Application of Policy

(1)  This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—

(a)  the development consists of any of the following—

(i)  the erection of a new building,

(ii)  the substantial redevelopment or the substantial refurbishment of an existing building,

(iii)  the conversion of an existing building, and

(b)  the building concerned is at least 3 or more storeys (not including levels below ground level (existing) or levels that are less than 1.2 metres above ground level (existing) that provide for car parking), and

(c)  the building concerned contains at least 4 or more dwellings.

State Environmental Planning Policy No 55 – Remediation of Land

7 Contamination and remediation to be considered in determining development application

(1) A consent authority must not consent to the carrying out of any development on land unless--

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

State Environmental Planning Policy (Sydney Drinking Water Catchment)

10 Development consent cannot be granted unless neutral or beneficial effect on water quality

(1)  A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality.

(2)  For the purposes of determining whether the carrying out of the proposed development on land in the Sydney drinking water catchment would have a neutral or beneficial effect on water quality, the consent authority must, if the proposed development is one to which the NorBE Tool applies, undertake an assessment using that Tool.

Note—

The NorBE Guideline provides information and guidance for consent authorities in the use of the NorBE Tool

Goulburn Mulwaree Local Environmental Plan 2009

2.3   Zone objectives and Land Use Table

(1)  The Land Use Table at the end of this Part specifies for each zone—

(a)  the objectives for development, and

(b)  development that may be carried out without development consent, and

(c)  development that may be carried out only with development consent, and

(d)  development that is prohibited.

(2)  The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(3)  In the Land Use Table at the end of this Part—

(a)  a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b)  a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4)  This clause is subject to the other provisions of this Plan.

Zone R1   General Residential

1   Objectives of zone

•  To provide for the housing needs of the community.

•  To provide for a variety of housing types and densities.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To maintain the economic strength of commercial centres by limiting the retailing of food and clothing.

2   Permitted without consent

Home occupations; Roads

3   Permitted with consent

Attached dwellings; Bed and breakfast accommodation; Boarding houses; Centre-based child care facilities; Community facilities; Dwelling houses; Food and drink premises; Group homes; Home industries; Hostels; Multi dwelling housing; Neighbourhood shops; Oyster aquaculture; Places of public worship; Plant nurseries; Pond-based aquaculture; Residential flat buildings; Respite day care centres; Semi-detached dwellings; Seniors housing; Serviced apartments; Shop top housing; Tank-based aquaculture;

Goulburn Mulwaree Development Control Plan 2009

“3.8.2 Controls for development at or below the flood planning level

applicants must have regard to the provisions of clause 7.1 LEP 2009

construction - pier and beam construction or suspended reinforced concrete slabs must be used, as these minimise the requirement for cut and fill and allow floodwaters to flow under the building

cut and fill - cut and fill should be minimised for all development within the floodplain. Filling can result in a reduction in flood storage or change flow patterns and is not permitted unless it can be demonstrated that there is no decrease in storage capacity on the property and that flow characteristics will not significantly be changed. Cutting can result in an increase in flood depths and potentially, an increase in flood hazard and/or extent of inundation, and is not permitted unless it can be demonstrated that flood behaviour will not be altered

flood storage - no development is permissible in areas designated as flood storage, unless it can be demonstrated that there will be no decrease in net flood storage available on the site

building materials and construction methods - all buildings at or below the flood planning level must be constructed of flood compatible materials

structural soundness - all development applications must demonstrate that the proposed structure can withstand the force of floodwater, debris and buoyancy.

Fencing - solid fences that impede the flow of floodwaters are not permissible. Fences must be at least 50% open to allow the progress of floodwaters

residential floor levels - all habitable rooms within residential development must beat or above the flood planning level.”

19. 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. The parties’ decision involves the Court exercising:

1. the power or function under ss 4.16 and 8.14 of the EPA Act and ss 34(3) and 39 of the LEC Act in relation to the DA proceedings;

2. the power or function under s 8.25(3) of the EPA Act and ss 34(3) and 39 of the LEC Act in relation to the BIC proceedings.

20. 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 to be:

DA proceedings

1. The DA was made by the owner of the land to which the DA relates in accordance with cl 49 of the Environmental and Planning Regulation 2000 (EPA Regulation). The land is located at 15 Avoca Street Goulburn and it is the whole of the land in Lot 8 Deposited Plan 532532.

2. The proposed development is for the purposes of a residential flat building as defined in the Dictionary to GMLEP2009.

3. The site is situated within the Zone R1 General Residential pursuant to the zoning provisions of GMLEP2009. Development for the purposes of residential flat building is permissible with consent in the R1 zone in accordance with the Land Use Table in the GMLEP2009.

4. The objectives of the Zone R1 General Residential are:

To provide for the housing needs of the community.

To provide for a variety of housing types and densities

To enable other land uses that provide facilities or services to meet the day to day needs of residents.

To maintain the economic strength of commercial centres by limiting the retailing of food and clothing

As required by cl 2.3(2) of GMLEP2009 the parties have had regard to these objectives in reaching the s 34 Agreement.

5. Height and FSR: There is no maximum height or floor space ratio prescribed for the site by the GMLEP2009.

6. Heritage: The proposed development is not a heritage item, nor is within any heritage conservation area.

7. Minimum Lot Size: GMLEP2009 prescribes a minimum lot size of 1050m² for development for the purpose of residential flat buildings on land within the R1 zone. The area of the site is 1368.5m² and therefore complies with the control.

8. Flooding: The site is mapped as a “flood planning area” on the map referred to in cl 7.1 of GMLEP2009. Pursuant to cl 7.1(4) the parties are, and the Court must be, satisfied in relation to the relevant factors which are addressed in the Flood Assessment Letter and Risk Management Plan prepared by JN Engineering dated 24 June 2021 (Rev F), the recommendations of which are incorporated into the conditions 15 and 16 of annexure A: conditions of consent.

9. State Environmental Planning Policy No 65 – Design of Quality Residential Apartment Development (SEPP65) – In accordance with cl  4(1)(b) SEPP65 does not apply as the building on the site is only 2 storeys high.

10. Although no notification or advertising of the development application was required pursuant to Council’s Community Participation Plan, the DA was notified for a period of 14 days from 3 December 2020 to 17 December 2020 in accordance with cl 77 of the EPA Regulation. No submissions were received by Council.

11. The parties have had regard to Goulburn Mulwaree Development Control Plan 2009 in reaching the s 34 Agreement.

12. Council’s contentions have been addressed by the amended documentation comprising the s 34 Agreement between the parties:

1. The parties are satisfied that the proposal as amended, together with the Flood Assessment Letter and Risk Management Plan prepared by JN Engineering dated 24 June 2021 (Rev F), adequately considers and responds to the flood prone nature of the land, and satisfies cl 7.1 of GMLEP2009.

2. The parties are satisfied that the proposal as amended ensures that Unit 6 can be safely occupied, and may continue to be used.

3. The parties are satisfied that sufficient information has been provided to allow the proper assessment of the DA; and

4. Conditions will be imposed requiring compliance with the BCA, including the stairs and balcony, and the parties are agreed that it is appropriate for Unit 6 to have balcony access. The draft conditions require the entire building on the site to be upgraded to comply with the fire safety measures set out in the BCA.

5. Existing Works: The DA, as now proposed, does not seek any approval for pre-existing work. These works formerly undertaken on the site are to be dealt with by way of a Building Information Certificate in proceedings 2021/26550.

BIC proceedings

13. The parties are satisfied that the contentions in the BIC proceedings are satisfied by the Applicant completing the works as set out in the plans and proposed conditions of consent in annexure A to the DA proceedings.

14. Upon completion of the works as set out in the proposed grant of consent for the DA proceedings, the Council will be directed to issue a BIC within 7 days of the issue of an Occupation Certificate for the whole of development consent DA/0216/2021.

21. 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. I am satisfied that each jurisdictional prerequisite has been met as set out below:

DA proceedings

1. The Applicant is the owner of the land, and he lodged the DA with Council on 24 November 2020 pursuant to s 4.5 of the EPA Act and cl 49 of the EPA Regulation.

2. Although Council did not have a policy of notification relevant to the DA, Council notified the DA for 14 days in accordance with cl 77 of the EPA Regulation.

3. The DA can be granted consent under s 4.2 of the EPA Act and cl 2.3(1) and Zone R1 General Residential of the GMLEP2009.

4. On 20 January 2021 Council determined the DA by way of refusal pursuant to s 4.16(1)(b) of the EPA Act.

5. On 29 January 2021 the Applicant appealed to the Court pursuant to s 8.7(1) of the EPA Act.

6. The s 34 conciliation conference resulted in the following amendments and inclusions in the proposed DA, as reflected in the plans referred to in condition 2 of the conditions of consent in Annexure A to the judgment:

1. Unit 6:

1. Internal stairs in Unit 6 deleted. Kitchen relocated from ground floor to first floor.

2. Western wall on ground floor to be rebuilt to flood and structural specification to BCA.

3. Ground floor of Unit 6 remains as part of Unit 6, but accessed only from ground floor level. The ground floor of Unit 6 is now proposed as a non-habitable storage/laundry area, with adjoining bathroom.

2. Ground keeper’s workshop/storage 5 on ground floor:

1. Northern walls deleted.

2. Internal partition walls separating these 2 spaces is also to be deleted.

3. Kitchen facilities deleted. The workbench in former kitchen retained.

4. The new space will be unusable as under-croft car parking areas and/or storage associated with Unit 6.

3. Storage areas 1, 2, 3 and 4 on ground floor:

1. Northern and eastern walls rebuilt to flood and structural specifications.

2. These spaces are to remain, and are not to be directly linked to any particular unit. These spaces will be used as general storage spaces, including for furniture, mattresses, building materials and documents.

4. A new workshop/shed on the eastern side of the site. This is to be used as the ground keeper’s workshop.

7. The new works contained in the DA are:

1. Demolition and rebuild of unauthorised external (northern) walls to Storage 1, 2 and 4;

2. Demolition and rebuild of unauthorised partition walls between Storage 2 and 3;

3. Demolition of unauthorised external (northern) walls and internal partition walls from ground keeper’s workshop/storage 5, to form under-croft parking area;

4. Removal of kitchen facilities from under-croft parking associated with Unit 6 (formerly ground keeper’s workshop);

5. Demolition of internal stairs within Unit 6 and infilling void between ground and first floor;

6. Relocation of kitchen facilities from ground to first floor level of Unit 6;

7. New minor internal works in ground level of Unit 6 to provide a non-habitable laundry and storage area;

8. Demolition of existing communal balcony located on northern side of the building, and construction of a new balcony which will comprise of steel posts and balustrades, to match the style of the existing balcony; and

9. Construction of a new ground keeper’s shed in the eastern side setback, measuring 5.9m in depth by 3.7m in width. The shed will be used as a ground keeper’s workshop and will have 20m² of floor area.

8. To facilitate the works set out in the DA, a number of BCA and fire protection works are being undertaken, as detailed in the BCA Report dated 27 May 2021 (BCA Report) by BCA Vision, reference P210066(2).

9. The plans referenced in Annexure A Conditions of Consent, condition 2, reflect the amendments/additions agreed between the parties as set out above. The s 34 Agreement responds to the Contentions 1 to 4. Contention 1 in relation to the flood prone aspect of the site will also be dealt with below as a separate item.

10. The parties considered the application of State Environmental Planning Policy No 55 – Remediation of Land. The site has a history of residential uses and is covered by the existing building and hard surfaces. As such, it is considered that there is no reason to suspect that the soils on the site are contaminated. No excavation is proposed and there is no ground disturbance proposed in the DA. The parties are satisfied that there is no reason to further investigate the site in relation to contamination. I agree with the parties.

11. The site is within the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (SEPP (SDWC)). Clause 10 of SEPP (SDWC) provides that development consent must not be granted unless the consent authority is satisfied that the carrying out of the DA would have a neutral or beneficial effect on water quality. The DA is considered to have a neutral or beneficial impact on water quality.

12. The DA complies with the development standards in GMLEP2009, and generally with GMLEP2009.

13. The alterations and additions proposed in the DA comply with the controls in Goulburn Mulwaree Development Control Plan 2009, and in particular in relation to clause 3.8.2 Controls for development at or below the flood planning level.

22. The issues raised by the site being flood prone land have been dealt with by the filing of the Flood Assessment Letter and Risk Management Plan by Jones Nicholson Pty Ltd dated 9 June 2021, reference CPRT – N0200943.01 (the Flood Management Risk Report). The Flood Risk Management Report contains, inter alia, a Flood emergency Response Plan, Emergency Contacts List, and an Evacuation Actions, Responsibilities and Procedures Plan. The Flood Risk Management Report concludes (par 5 on p 12):

“In conclusion, the outcomes …are:

(i) The subject site is affected by 100/year ARI flooding at the eastern corner;

(ii) Flood compatible material shall be utilised for constructions within the flood extend;

(iii) During extreme storm events, occupants shall remain indoor unless advised by the authority or a qualified person.”

23. Jones Nicholson Pty Limited recommended the following flood mitigation works in line with the BCA works set out in the BCA Report, which have been adopted by the parties:

1. Any enclosure below the 100-year ARI RL of 631.00 must have openings to allow for automatic entry and exit of floodwater for all floods up to the Flood Height Level (FHL);

2. The openings must meet the following criteria:

1. Doors and windows must not be counted as openings, but openings can be installed in doors and windows;

2. There must be a minimum of two openings on different sides of each enclosed area, and

3. The total net area of all openings must be at least 1% of the enclosed area; and

4. Openings must permit a 75m sphere pass through; and

5. Any opening covers must not impede the flow of water.

6. Additionally, any electrical and internal wiring will have to be raised above the maximum flood level as set out on p 9 of the Amended Statement of Environmental Effects by Planning Ingenuity dated 9 June 2021.

BIC proceedings

24. The BIC was lodged by the Applicant with the Council on 24 November 2020 in accordance with ss 4.5, 6.22 and 6.23 of the EPA Act and cl 280 of the EPA Regulation.

25. On 16 December 2020 the Council determined the BIC by refusing it as it contained works defined as development for which there was no approval, pursuant to ss 4.2(1) and 6.25(1) of the EPA Act.

26. On 29 January 2021 the Applicant filed the appeal in this Court pursuant to ss 8.25(1) and (2) of the EPA Act.

27. Under ss 8.14(1) and (2) of the EPA Act the Court has, in addition to any other functions and discretions – “for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal”.

28. Further s 8.25 of the EPA Act, subs (3) provides:

(3)  On hearing the appeal, the Court may do any one or more of the following—

(a)  direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit,

(b)  revoke, alter or confirm a notice to supply information,

(c)  make any other order that it considers appropriate.

29. The unauthorised works to be retained pursuant to the BIC are:

1. Worktop bench in under-croft parking associated with Unit 6 (formerly the Ground Keeper’s Workshop);

2. Bathroom in under-croft parking associated with Unit 6 (formerly Ground Keeper’s Workshop); and

3. Reconfigured Ground Floor bathroom associated with Unit 6.

4. Otherwise the contentions in relation to the BIC are dealt with by completion of the works in the DA.

30. I am satisfied that the parties have adopted the advice in relation to flood mitigation as set out in the Flood Risk Management Report and in relation to structural and fire regulation compliance, the advice in the BCA Report in relation to both the DA and BCA proceedings.

31. Having regard to s 4.15 of the EPA Act, I am otherwise satisfied with the jurisdictional prerequisites relied on by the parties (and otherwise documented in the Council’s Statement of Facts and Contentions in both proceedings filed 9 March 2021 and the Amended Statement of Environmental Effects by Ingenuity Planning dated 9 June 2021) in relation to the provisions of GMLEP2009, SEPP65, SEPP55, SEPP (SDWC), and the GMDCP2009.

32. 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. In exercise of the Court’s power or function under s 4.16 (for the DA proceedings) and s 8.25(3) (for the BIC proceedings) of the EPA Act, and ss 34(3) and 39 of the LEC Act, I shall grant consent to the DA and uphold the appeal in the BIC proceedings.

33. The Court orders:

1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Goulburn Mulwaree Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the development application No. DA/0216/2021 filed with the Court on 29 January 2021 by amending the Plans as follows:

Architectural plans prepared by Archiplan Design Studio
SHEET.	REV	TITLE OF PLAN OR DOCUMENT	DATE.
4.01	D	Proposed Ground & Lower Ground Floor Plan Analysis & Construction Management Plan (post Sec 34 Conference)	25/06/2021
4.02	D	Proposed Ground & Lower Ground Floor Plan (post Sec 34 Conference)	25/06/2021
4.03	D	Proposed First Floor Plan (post Sec 34 Conference)	25/06/2021
4.04	D	Proposed Western Avoca Street Elevation (post Sec 34 Conference)	25/06/2021
4.05	D	Proposed Northern & Southern Elevations (post Sec 34 Conference)	25/06/2021
4.06	D	Proposed Northern Giddings Street Elevation (post Sec 34 Conference)	25/06/2021
4.07	D	Proposed Eastern Side Elevation (post Sec 34 Conference)	25/06/2021
4.08	D	Proposed Long Section A-A (post Sec 34 Conference)	25/06/2021
5.01	D	Material & Colour Schedule of Finishes	25/06/2021
5.02	D	Sedimentation, Erosion Control & Waste Management Details	25/06/2021

2. The amendments to the plans are as follows:

1. Unit 6:

1. Internal stairs in Unit 6 deleted. Kitchen relocated from ground floor to first floor.

2. Western wall on ground floor to be rebuilt to flood and structural specification to Building Code of Australia.

3. Ground floor of Unit 6 remains as part of Unit 6, but accessed only from ground floor level. The ground floor of Unit 6 is now proposed as a non-habitable storage/laundry area, with adjoining bathroom.

2. Ground keeper’s workshop/storage 5 on ground floor converted to under-croft parking and open storage:

1. Northern walls deleted.

2. Internal partition walls separating these 2 spaces is also to be deleted.

3. Kitchen facilities deleted. The workbench in former kitchen retained, subject to BCA compliance.

4. The new space will be unusable as under-croft car parking areas and/or storage associates with Unit 6.

3. Storage areas 1, 2, 3 and 4 on ground floor:

1. Northern and eastern walls rebuilt to flood and structural specifications.

2. These spaces are to remain, and are not to be directly linked to any particular unit. These spaces will be used as general storage spaces, including for furniture, mattresses, building materials and documents.

4. A new workshop/shed on the eastern side of the site. This is to be used as the ground keeper’s workshop.

3. Further, in relation to proceedings no. 2021/26549 the Court notes that: Goulburn Mulwaree Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending Development Application No. DA/0216/2021 (development application) filed with the Court on 20 December 2020 by amending the Plans as set out in (1) above.

34. The Court directs that:

1. The respondent, Goulburn Mulwaree Council, as the relevant consent authority, is to lodge the agreed amendments to the development application on the NSW planning portal within 14 days of the date of this order and notify the applicant and the Court after it has been lodged.

2. The applicant is to file a copy of the amended Development Application No. DA/0216/2021 within 7 days after he has lodged the agreed amendments to Development Application No. DA/0216/2021 on the NSW Planning Portal.

3. In the event the applicant is unable to lodge the amended application on the NSW planning portal as directed in (2) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 21 days after the date of the order and for the matter to be relisted for further directions.

35. Subject to the Court being notified of compliance with the Directions in [34] the Court will make final orders for proceedings No.2021/ 26549 in accordance with the s 34 Agreement dated 27 August 2021, and final orders for proceedings No. 2021/26550 in accordance with the s 34 Agreement dated 12 July 2021.

…………………………

M Peatman

Acting Commissioner of the Court

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Decision last updated: 01 September 2021