MOD Urban Pty Ltd v Waverley Council

[2024] NSWLEC 1823

Land and Environment Court

New South Wales

Medium Neutral Citation:

MOD Urban Pty Ltd v Waverley Council [2024] NSWLEC 1823

Hearing dates:

Conciliation conference on 6 December 2024

Date of orders:

19 December 2024

Decision date:

19 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. 404/2021 is modified by the documents set out in Annexure A, by the terms set out in Annexure B.

(3) Development Consent No. 404/2021 as modified by the Court is Annexure C.

Catchwords:

MODIFICATION APPLICATION – dwelling house - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.7, 8.15

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

Cases Cited:

Dowse v Waverley Council [2022] NSWLEC 1260

Category:

Principal judgment

Parties:

MOD Urban Pty Ltd (Applicant)
Waverley Council (Respondent)

Representation:

Counsel:
P Holland (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Gadens (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/316576

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination of a review of the modification application for DA-404/2021/1/B (modification application). DA/404/2021 is a court granted development consent for alterations and additions to an existing dwelling including an attic at 77 Fletcher Street, Tamarama (legally known as Lot 19 in DP10118) (site).

2. The proposed modifications as described in the jurisdictional statement are:

“Modifications to conditions

Deletion of conditions 2(a), 2(d) 3(a) and 3(b).

Modification of the approved two (2) storey dwelling, comprising:

Basement:

Retention of the existing lower ground level and internal reconfiguration to include a store and pool amenities room, bathroom, shower, laundry and storeroom. That is, remove the requirement to infill condition; an external door is proposed on the southern wall leading directly to the rear private open space, and an internal staircase access to the ground floor level.

Ground Floor:

An external door is proposed on the southern wall leading directly to the rear private open space.

Mid-floor level:

An external door is proposed on the southern wall leading directly to the rear private open space.

First Floor:

Internal reconfiguration of the floor layout, namely the location of the internal staircase and Screening, is proposed for the western part of the south-facing window labelled W10.

The retention of the carport structure and hardstand car space.”

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties on 6 December 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 4.56 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, 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. I have considered the documentation within the amended application and the parties’ agreed jurisdictional statement at paragraphs 15 – 17 and Statement of Environmental Effects prepared by MOD Urban dated 20 September 2023 (SEE). I accept that the proposed modifications to the approved alterations and additions will be substantially the same as the original development (s 4.56(1)(a) of the EPA Act).

11. With respect to s 4.56(1)(b), (c) and (d) of the EPA Act, the modification application was notified between 16 April 2024 to 2 May 2024. No objections were received.

12. With respect to s 4.56(1A) of the EPA Act and the reasons for granting consent, in reviewing the parties’ jurisdictional statement, SEE and Dowse v Waverley Council [2022] NSWLEC 1260, the modification application does not offend the reasons for the grant of consent, noting that the original court consent was also through an agreement between the parties.

13. Further, I accept that the parties have adequately considered s 4.15(1) of the EPA Act as set out in the SEE.

14. The parties agree and I accept that the provisions required to be addressed by ss 4.56 of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal 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 upheld.

2. Development Consent No. 404/2021 is modified by the documents set out in Annexure A, by the terms set out in Annexure B.

3. Development Consent No. 404/2021 as modified by the Court is Annexure C.

S Porter

Commissioner of the Court

Annexure A

Annexure B

Annexure C

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Decision last updated: 19 December 2024