Ng v Willoughby City Council

[2024] NSWLEC 1685

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ng v Willoughby City Council [2024] NSWLEC 1685

Hearing dates:

21 October 2024

Date of orders:

29 October 2024

Decision date:

29 October 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Appeal is upheld.

(2) Modification Application DA-2019/57/B seeking to modify Development Consent DA-2019/57 for change of use of a dwelling to a boarding house alterations and additions to the existing building, car parking and associated works at 6 View Street, Chatswood, is approved, subject to the conditions in Annexure A.

(3) Development Application DA-2019/57 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification of consent change of use – boarding house - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.56, 8.9

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 107, 113

Category:

Principal judgment

Parties:

Chung Kei Ng (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
G Hartley (Solicitor)(Applicant)
K Mortimer (Solicitor)(Respondent)

Solicitors:
Hartley Solicitors (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/304529

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the deemed refusal of an application to modify a development consent DA-2019/57/B (Modification Application) seeking to modify Development Consent DA2019/57 (Consent) pursuant to s 4.56 of the EPA Act. at 6 View St, Chatswood legally described as Lot F in DA448603. (the Site).

2. The Consent was granted by the Court on 11 November 2021. The Consent approved the change of use of a dwelling house to a boarding house including alterations and additions to the existing building, car parking and associated works.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 21 October 2024. I have presided over the conciliation conference.

4. The parties’ experts agree that all Contentions raised in the Statement of Facts and Contentions filed on 31 October 2023 (SOFAC) have been resolved by the preparation of the:

1. amended plans, dated 30 April 2024 (Amended Plans), and

2. agreed conditions of consent.

5. 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 modifying the consent subject to conditions.

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. 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 which include the consideration of matters set out in s 4.56(1A) of the EPA Act.

7. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to approve the modification of a consent.

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 to be the terms of s 4.56 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement.

9. The terms of s 4.56(1) of the EPA Act provides as follows:

4.56   Modification by consent authorities of consents granted by the Court

(cf previous s 96AA)

(1)  A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and

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

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

(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

(c)  it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and

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

10. The parties agree that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.

11. The Consent was granted by the Land and Environment Court and was modified by Modification Application DA-2019/57/A on 13 February 2023 by way of modification of Conditions 2 and 3 and provision of amended architectural plans and stormwater plans.

12. On 2 October 2024 the Court granted leave for the Applicant to amend the Modification Applications and rely on the Amended Plans.

13. The Modification Application, as amended, does not propose any changes to the stormwater drainage system approved under the Consent. The Modification Application, as amended, proposes the following modifications to the Consent:

1. Correction to the location and extent of the existing dwelling as per the corrected survey.

2. Conversion of the standard car space to an accessible car space.

3. New car ramp for Manager’s car park (due to the approved ramp being non-compliant).

4. Reconfiguration of front setback including additional landscaped area.

5. Correction to the site area due to the discrepancy between the original and corrected surveys.

14. An assessment of the comparability of the Modification Application with the development approved by the Consent is provided at page 11 of the Statement of Environmental Effects (SEE) prepared by ABC Planning Pty Ltd dated July 2023 submitted with the Modification Application (see Class 1 Application, Tab 10 at page 11).

15. The Court therefore is satisfied that the Modification Application is substantially the same development as the development approved by the Consent as required under section 4.56(1)(a) of the EPA Act.

16. In accordance with s 4.56(1)(b) and (c) and s 107 of the Environmental Planning and Assessment Regulation 2021, the Modification Application was notified to residents between 30 August and 20 September 2023. Two submissions were received which raised issues with poor management and the proposed stormwater plans.

17. The Court can be satisfied that the issues raised have been considered and addressed by Amended Plans including the Plan of Management and the Applicant no longer seeking to modify the stormwater layout.

18. 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 adopt the reasons given by the parties.

19. 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.

Notations:

20. The Court notes:

1. The Respondent, as the relevant consent authority, has agreed, pursuant to Section 113(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application DA-2019/57/B in accordance with the plans and documents listed below:

1. Architectural plans, prepared by JKM Architects Pty Ltd:

Drawing Number	Revision	Title	Date
DA00.00	K	COVER SHEET	30.04.2024
DA00.10	D	SITE PLAN	10.04.2024
DA01.00	H	EXISTING LOWER GROUND PLAN	10.04.2024
DA01.01	H	EXISTING GROUND FLOOR PLAN	10.04.2024
DA.01.02	H	EXISTING ROOF PLAN	10.04.2024
DA02.00	K	PROPOSED LOWER GROUND	30.04.2024
DA02.01	M	PROPOSED GROUND FLOOR PLAN	30.04.2024
DA02.02	I	PROPOSED ROOF PLAN	10.04.2024
DA02.10	D	ACCESSIBLE ROOM	10.04.2024
DA03.01	H	EXISTING ELEVATIONS	10.04.2024
DA03.11	J	PROPOSED ELEVATIONS	10.04.2024
DA04.00	I	PROPOSED SECTIONS – SHEET 01	10.04.2024
DA04.01	E	PROPOSED SECTIONS – SHEET 02	30.04.2024
DA20.20	E	AREA PLANS	30.04.2024

2. Survey plan prepared by Survcorp Pty Ltd, Issue 0, dated 26 June 2021

3. Building Code of Australia Compliance Statement prepared by Access I Pty Ltd, dated 21 May 2024

4. Accessibility letter by David Goding, Morris Goding Access Consulting, dated 18 April 2024

5. Plan of Management prepared by ABC Planning Pty Ltd, dated July 2021, Revised October 2024

Orders:

21. The Court orders:

1. The Appeal is upheld.

2. Modification Application DA-2019/57/B seeking to modify Development Consent DA-2019/57 for change of use of a dwelling to a boarding house alterations and additions to the existing building, car parking and associated works at 6 View Street, Chatswood, is approved, subject to the conditions in Annexure A.

3. Development Application DA-2019/57 as modified by the Court is Annexure B.

E Espinosa

Commissioner of the Court

304529.23 Annexure A

304529.23 Annexure B

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Decision last updated: 29 October 2024