Power v Inner West Council

[2022] NSWLEC 1691

Land and Environment Court

New South Wales

Medium Neutral Citation:

Power v Inner West Council [2022] NSWLEC 1691

Hearing dates:

Conciliation conference 6 December 2022

Date of orders:

13 December 2022

Decision date:

13 December 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) Leave is granted to the Applicants to amend the modification application MOD/2021/0522 and rely on the plans and documents listed at condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Modification Application MOD/2021/0522 to modify DA/2020/0331 is approved.

(4) Development consent DA/2020/0331 is modified in the terms in Annexure A.

(5) As a consequence of order (4), Development consent DA/2020/0331 is subject to the consolidated conditions set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties - orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.55, 8.9

Environmental Planning and Assessment Regulation 2000 cl 121B

Environmental Planning and Assessment Regulation 2021 sch 6 s 3

Land and Environment Court Act 1979 s 34

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

State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Texts Cited:

Inner West Council Community Engagement Framework (November 2019)

Category:

Principal judgment

Parties:

Patrick Power (First Applicant)
Anastasia Power (Second Applicant)
Inner West Council (Respondent)

Representation:

Counsel:
A Pearman (Applicants)
S Hill (Solicitor) (Respondent)

Solicitors:
Bick & Steele (Applicants)
HWL Ebsworth (Respondent)

File Number(s):

2022/244924

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for alterations and additions to the existing dwelling at 13 Dickson Street, Newtown. The Site is legally identified as Lots 34 and 35 in DP 2569. The modification application (MOD/2021/0522) was lodged pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) and seeks to modify development consent DA/2020/0331 (the original consent) by amendment to the development consent plans in condition 1, the inclusion of basement storage, alterations to internal walls and planning of the dwelling, enclosure of an approved balcony and the introduction of skylights. Pursuant to s 8.9 of the EPA Act the Applicants appeal the actual refusal of the modification application by the Local Planning Panel. 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. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 December 2022. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties based on amendments to the modification application. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act.

4. The Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) remains applicable to the modification application by virtue of the savings and transitional provisions under Schedule 6, s 3 of the Environmental Planning and Assessment Regulation 2021 which commenced on 1 March 2022 as the application was lodged, but not finally determined before that date. Under cl 121B of the EPA Regulation 2000, the modification application can be amended, with the agreement of the consent authority, by lodging the amended application on the NSW planning portal. The amended application was lodged on the NSW planning portal on 6 December 2022 .

5. 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 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 satisfying s 4.55(2)(a) of the EPA Act.

2. There are no conditions which have been imposed as a requirement of a concurrence to the original consent or general terms of approval, and therefore no consultation is required under s 4.55(2)(b) of the EPA Act.

3. The Modification Application was notified in accordance with the EPA Act, the EPA Regulation 2000 and Inner West Councils Community Engagement Framework, satisfying s 4.55(2)(c) of the EPA Act. I am satisfied that the matters raised in submissions have been considered as required by s 4.55(2)(d) of the EPA Act and where appropriate have resulted in amendments or the imposition of conditions.

4. Under s 4.55(3) of the EPA Act the consent authority must also take into consideration:

(a) such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application; and

(b) the reasons given by the consent authority for the grant of the consent that is sought to be modified.

5. With the assistance of the agreed jurisdictional note filed by the parties I conclude:

1. 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, precludes the approval of the Modification Application.

2. An amended BASIX certificate has been prepared addressing the modified development as required by State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

3. I accept the parties agreed submission that the proposal does not raise any issues under s 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 that were not previously considered as part of the assessment of the development application.

4. With the benefit of the joint report of the Heritage consultants I am able to be satisfied that effect of the proposed development on the heritage significance of the Holmwood Archaeological Site A11, of which it is part, or the proximate local heritage items is acceptable.

5. That the amendments proposed by the Modification Application do not generate impacts which preclude approval.

6. The Modification Application is accompanied by a Geotechnical Assessment and a Structural Assessment which addresses the proposed basement excavation and conclude it is acceptable. I accept that any potential impacts arising from excavation and construction are able to be adequately managed by conditions and that the modification will not otherwise have an adverse impact on adjoining development or the locality.

7. In determining the Modification Application, I have taken into consideration the suitability of the site for the development, the submissions received and the public interest.

6. The original consent was determined under delegation by Inner West Council. The reasons, relevant to s 4.55(3) of the EPA Act, are those contained in the Development Assessment Report and the Notice of Determination. In determining the Modification Application, I have taken into consideration the reasons ascertainable from these documents for the grant of the consent to the original consent.

6. 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.

7. 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.

8. The Court notes:

1. That the Court, exercising the powers of the consent authority pursuant to s 39 of the LEC Act has agreed under cl 121B of the EPA Regulation 2000 to the Applicants amending MOD/2021/0522

2. That the amended Modification Application was lodged on the NSW Planning Portal on 6 December 2022

Orders

9. The Court orders that:

1. Leave is granted to the Applicants to amend the modification application MOD/2021/0522 and rely on the plans and documents listed at condition 1 of Annexure A.

2. The appeal is upheld.

3. Modification Application MOD/2021/0522 to modify DA/2020/0331 is approved.

4. Development consent DA/2020/0331 is modified in the terms in Annexure A.

5. As a consequence of order (4), Development consent DA/2020/0331 is subject to the consolidated conditions set out in Annexure B.

…………………………..

D Dickson

Commissioner of the Court

Annexure A (152601, pdf)

Annexure B (232825, pdf)

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Decision last updated: 13 December 2022