Richards v Waverley Council

[2020] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation:	Richards v Waverley Council [2020] NSWLEC 1186
Hearing dates:	Conciliation conference on 17 April 2020
Date of orders:	22 April 2020
Decision date:	22 April 2020
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is upheld. (2) Modification Application No. DA-336/2018/A for the modification to amend privacy screens for the approved development DA-336/2018 is approved in accordance with the plans at Annexure 'A' and subject to the conditions in Annexure ‘B’.
Catchwords:	APPEAL – modification application – conciliation conference – agreement reached
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Lance Richards (Applicant) Waverley Council (Respondent)
Representation:	Counsel: T Neal (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent)   Solicitors: Colin Biggers & Paisley (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/404244
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns conditions of consent imposed with the approval of Modification Application No. DA-336/2018/A (‘Modification Application’), which was made pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The appeal is lodged pursuant to s 8.9 of the EPA Act.

2. The modification application sought to modify approved development (DA-336/2018) for the demolition of an existing dwelling, garage and outbuilding and construction of a new three storey dwelling, garage, new swimming pool and associated landscaping (‘Approved Development’) at 42 Beaumont Street, Rose Bay (‘site’).

3. On 17 April 2020, the Court arranged a conciliation conference between the parties, under s 34AA(2)(a) of the Land and Environment Court Act 1979 (‘LEC Act’) at which I presided. 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. The decision agreed upon would uphold the appeal.

4. The parties submit 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), and provided a jurisdictional statement to that effect. I agree with this submission of the parties, and address the jurisdictional tests in regard to modification applications under s 4.55(1A) of the EPA Act as follows:

• The first test is that of whether the modification involves minimal environmental impact. Examination of this question requires me to detail some further particulars of the application. The Council conditions at the centre of the applicant’s appeal would provide for certain visual screening along the western side of the proposed dwelling. The applicant was concerned about the effects of this screening on views otherwise available from the proposed dwelling. I am advised that the original intentions of these conditions were to ensure no unreasonable privacy impact in regard to the residence to the west (40 Beaumont Street). The applicant submitted that the condition imposed by Council was unnecessary and that the screening proposed in the modification application already prevented unreasonable privacy impacts. The applicant provided further information to Council which indicated that the screening proposed in the modification application would not provide unreasonable privacy impacts. Council was satisfied with the information supplied which drew it to the conclusion that the appeal be upheld. Having reviewed information provided by the applicant I am satisfied that the proposed modification is of minimal environmental impact.

• The second test is whether, with the proposed modification, the development is substantially the same development as that for which the consent was originally granted. The modification is limited to the particulars of privacy screens. I am satisfied that the modification would not qualitatively or quantitatively change the dwelling in any substantive manner and would provide for substantially the same development as that for which the consent was originally granted.

• The third test relates to notification. Council advises that the modification application was notified in accordance with legislative requirements and Council’s Development Control Plan. One objecting submission was received, from a member of the public. Council has considered this submission and is satisfied that the concerns raised in the submission have been adequately considered, and addressed by architectural plans submitted in support of the modification application. I have also considered the substance of the submission, which relates to the question of privacy impact.

5. Having reached the state of satisfaction that the decision is one that the Court could 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”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. The Court orders that:

1. The appeal is upheld.

2. Modification Application No. DA-336/2018/A for the modification to amend privacy screens for the approved development DA-336/2018 is approved in accordance with the plans at Annexure 'A' and subject to the conditions in Annexure ‘B’.

……………………………

P Walsh

Commissioner of the Court

Annexure A (481 KB)

Annexure B (74.9 KB)

**********

Decision last updated: 22 April 2020